United States v. Thomas Lawrence Flum

518 F.2d 39, 1975 U.S. App. LEXIS 14092

• Court: Court of Appeals for the Eighth Circuit
• Decided: June 20, 1975
• Docket: 74-1288
• Status: Published

Opinions

WEBSTER, Circuit Judge.

Thomas Lawrence Flum was convicted in a jury-waived trial of attempting to board an aircraft while having about his person a concealed dangerous and deadly weapon, in violation of the Federal Aviation Act of 1958, as amended, 49 U.S.C. § 1472(7 ).¹ In this appeal Flum contends that he was convicted upon insufficient evidence since there was no evidence tending to establish that he intended to conceal the knives which were discovered during a preboarding search of his carry-on luggage and personal belongings. The government, while arguing in the alternative that there was sufficient evidence of intent to conceal, first contends that the statute does not require proof of such intent. The District Court² so held and we agree.

The objective facts of the case are well established by the evidence. On July 20, 1973, defendant Flum, accompanied by some friends, arrived at the Lincoln Municipal Airport at approximately 5:20 p.m. He first went to the ticket counter and purchased a ticket. The agent instructed him to proceed immediately to the gate where the passengers on his flight were already boarding. The defendant proceeded to a security post through which passengers must pass before reaching the departure gate. During the security inspection which followed, guards discovered a switchblade knife with a 3% inch blade and a butcher knife with a 7% inch blade. The butcher knife was found in a suitcase, wrapped in loose clothing. The switchblade knife was found inside a small gray box which was on the counter with other belongings.³

The essential elements of the relevant offense prohibited by 49 U.S.C. § 1472(7) are (1) attempting to board an aircraft (2) while carrying a deadly or dangerous weapon (3) which was concealed on or about the defendant’s person. Flum was clearly attempting to board an aircraft, and the deadly and dangerous character of the knives is likewise not disputed.⁴ What is disputed is whether the evidence showed beyond reasonable doubt that the weapons were “concealed” within the meaning of the statute.

Specific Intent

The defendant contends that the statute takes as its source the common law crime of carrying a concealed weapon and therefore requires the same proof of mens rea, that is, a specific intent to conceal. Flum testified that he had intended to check his bags in advance of boarding but lacked time to do so because he had arrived at the airport only five minutes • prior to take-off time. Since no one inquired whether he had any weapons in his possession, he argues, his act of presenting his belongings for inspection negated any intent to conceal. If intent to conceal were an essential element of the offense, this would be a compelling argument.⁵

In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the defendant had been convicted of converting government bomb casings which he had found on a government target range while deer hunting. The district court had refused to instruct on the issue of intent, holding no intent to be required by the statute, and the Sixth Circuit had affirmed. On certiorari the Supreme Court reversed, holding that the statute, 18 U.S.C. § 641, made the offense a felony if the value of the property exceeded $100, that conviction would gravely besmirch the defendant as a thief, and that the offense was taken over from the common law, which required proof of intent. However, in distinguishing that case from cases based upon regulatory or “public welfare offenses,” which do not require proof of intent, Justice Jackson explained the basis for the latter as follows:

These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.

342 U.S. at 255-56, 72 S.Ct. at 246. The provision of the statute ⁶ applicable to the instant case makes no reference to intent. In order then to determine whether the requirement of specific intent is nonetheless implied from the nature of' the statute, we turn again to the classic test which Judge (now Justice) Blackmun announced for our court in Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960):

From these cases emerges the proposition that where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause. Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 69-70, 30 S.Ct. 663, 54 L.Ed. 930; United States v. Balint [258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604] supra, page 252 of 258 U.S., at page 302 of 42 S.Ct.; Williams v. State of North Carolina, 325 U.S. 226, 238, 65 S.Ct. 1092, 89 L.Ed. 1577.

1. Policy. In 1961 Congress adopted certain amendments to the Federal Aviation Act of 1958, for the purpose of “ex-tendpng] Federal criminal laws to certain acts committed on board aircraft— in particular, such acts as aircraft ‘hijacking’, murder, manslaughter, assault, maiming, carrying concealed deadly or dangerous weapons, and stealing personal property.” H.R. Report No. 958, 87th Cong., 1st Sess. (1961), 1961 U.S.Code Cong. & Admin.News, p. 2563. The report continues:

A series of acts of a criminal nature recently committed aboard aircraft has dramatically underscored the gaps in existing law which can operate to provide criminals with a haven from prosecution.

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* * * The committee feels that it is necessary and appropriate for the legislation to have this broad coverage if it is to operate as an effective deterrent to crime and promote safety in air commerce. While the legislation is intended to be as broad in its coverage, geographic and otherwise, as its plain meaning indicates, it is not intended; — and, of course, it cannot — extend beyond such limitations as may be imposed by the Constitution. * * *

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Broad, stringent legislation such as is proposed here cannot, of course, prevent piracy of aircraft, but it is to be hoped that the enactment of laws providing stiff penalties for various crimes in air commerce will deter all except the hopelessly unbalanced from risking life and liberty in such undertakings.

1961 U.S.Code Cong. & Admin.News at pp. ¿563 — 64.

Further in its report, the Committee on Interstate and Foreign Commerce explained the objective and application of subsection (7), now 49 U.S.C. § 1472(7):

Subsection (7) would make it unlawful, with certain exceptions stated below, for any person * * * to attempt to board any * * * aircraft while having on or about his person a concealed deadly or dangerous weapon. 1961 U.S.Code Cong. & Admin.News at p. 2574.

The exceptions mentioned deal with possession of weapons by law enforcement officers or other authorized persons. Nowhere in the report is found any inference of a congressional purpose or policy that intent to conceal, must be demonstrated in order to prove the fact of concealment. Instead, a clear legislative intent is expressed that the reach of the legislation be “as broad in its coverage * * * as its plain meaning indicates,” subject only to constitutional limitations, none of which are in question here.

2. Standard. We cannot say that the standard expressed in the plain meaning of subsection (7) is unreasonable. A demonstrated need to halt the flow of weapons on board aircraft, which had exposed to peril large numbers of passengers and jeopardized the integrity of commercial travel, justified a stringent rule, adherence to which was properly expected of all persons traveling by air, for their mutual safety.

3. Penalty. The statutory penalty, a maximum fine of $1000 or imprisonment for not more than one year, or both, makes the offense a misdemeanor, see 18 U.S.C. § 1, and is thus “relatively small.” Moreover, other amendments to the Act which were adopted at the same time as subsection (7) both require evidence of wilfulness and provide for more stringent penalties,⁷ adding weight to the inference that the penalty here was a further manifestation of a congressional purpose that subsection (7) should define a no-intent offense.⁸

4. Effect of Conviction. Little need be said of the fourth requirement. Conviction of this offense does not gravely besmirch; it does not brand the guilty person as a felon or subject him to any burden beyond the sentence imposed.

5. Source of Statute. It is argued that the statute makes into a federal offense that which was an offense at common law: carrying a concealed weapon. The common law offense required proof of an intent to conceal; hence, defendant argues, the statute impliedly contains the same requirement. We find sufficient differences in the offense defined by subsection (7), along with the other factors considered herein, to conclude that Congress did not intend to adopt in toto the “cluster of ideas” associated with the words “concealed weapons.” See Morissette v. United States, supra, 342 U.S. at 263, 72 S.Ct. 240, 96 L.Ed. 288; United States v. Freed, 401 U.S. 601, 608, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). The conventional common law concealed-weapons offense makes it a crime to carry a weapon upon one’s person with the specific intent to conceal it. The thrust of the federal statute, a misdemeanor, is to prohibit entry of an airplane with such weapon concealed upon one’s person. The offense is not simply carrying the concealed weapon about one’s person, but in boarding or attempting to board an aircraft with it.

6. Congressional Purpose Supporting. The Congress, as demonstrated supra, sought to promote safety in aircraft by extending the federal criminal laws to aircraft-related acts as a deterrent to crime. This purpose supports the conclusion that Congress did not intend to impede the deterrent effect of its statute by imposing upon the government prosecutor the added burden of showing the state of mind of the person found attempting to board an aircraft with a deadly or dangerous concealed weapon. If conviction depended upon proof of misrepresentation at the security gate or some other furtive act inconsistent with innocence, then the congressional purpose to keep weapons out of the passenger section of aircraft would depend entirely upon the thoroughness of the inspection, since in almost every case a person who presented his bags for inspection would thereby have rebutted in advance a claim that he possessed a specific criminal intent to conceal. To the contrary, we think the. congressional purpose of keeping weapons from being taken on board airplanes by passengers fully supports the conclusion that intent to conceal is not an essential element of the offense.⁹

Two recent cases point to the same conclusion. In United States v. Margraf, 483 F.2d 708 (3d Cir. 1972) (en banc), vacated on other grounds, 414 U.S. 1106, 94 S.Ct. 833, 38 L.Ed.2d 734 (1973), on remand, 493 F.2d 1206 (1974), the defendant had been apprehended while attempting to board an airplane with a pocket knife in his right front pocket. In that case the defendant contended the government must prove that he knew the weapon was dangerous and that he intended to use it on board. The majority opinion, while focusing upon a slightly different aspect of intent, held that 49 U.S.C. § 1472(7 ) did not require a specific intent. The fact that Margraf was asked whether he was carrying a knife or weapon and denied it does not form a basis for distinguishing that case, because the holding was that proof of specific intent was not required by the statute.

In discussing the material elements of the offense proscribed by 49 U.S.C. § 1472(7), the Ninth Circuit, in United States v. Dishman, 486 F.2d 727 (9th Cir. 1973), observed:

Any necessary element of present or later developed intent to make use of the ‘deadly and dangerous’ weapon in the commission of a crime while aboard the aircraft is conspicuous by its utter absence.

486 F.2d at 730.

It concluded that “[sjubsection (7) is a non-intent statute * ' * Id. at 732.¹⁰

Concealment

While intent to conceal is not an essential element of the offense and therefore need not be established in order for the prosecution to make a submissible case, the fact of concealment is an essential element and must be proved beyond reasonable doubt.

The classic definition of a concealed weapon is one which is hidden from ordinary observation. People v. Barksdale, 14 Ill.App.3d 415, 302 N.E.2d 718, 722 (1973); People v. Colson, 14 Ill.App.3d 375, 302 N.E.2d 409, 410 (1973); Smith v. State, 18 Md.App. 612, 308 A.2d 442, 444 (1973); People v. Jackson, 43 Mich.App. 569, 204 N.W.2d 367, 368 (1972); State v. Pettit, 20 Ohio App.2d 170, 49 Ohio Opinions 2d 200, 252 N.E.2d 325, 328 (1969). This definition comports with the plain meaning of subsection (7) and we reject defendant’s suggestion that “concealed weapon” is a term of art by which Congress intended to imply a common law requirement of intent. A submissible case is made when the government establishes that a person has attempted to board an aircraft with a dangerous or deadly weapon on or about his person which is hidden from view.

We do not intimate that the weapon must in all cases be in open view prior to inspection. The trier of the fact could consider, for example, evidence offered on behalf of the defendant that he had informed the inspector of the presence and location of a deadly or dangerous weapon among his belongings. The obviousness of the weapon is a factor to be taken into consideration under all of the relevant facts and circumstances. Concealment under subsection (7) of the statute is measured by what a defendant did or failed to do, not by his intent. The inspection process in a particular case may be an objective fact to be considered with other objective facts on the issue of concealment. Not every inspection will uncover a concealed weapon, and no congressional purpose to let the fact of a security inspection operate as an absolute defense to the charge can be found in either the statute or its legislative history. Each case must stand upon its own facts.

While defendant submitted his bags and belongings to an inspection, as he was required to do, this objective fact was insufficient to overcome as a matter of law the finding of the District Court that the knives were concealed, a finding which is fully supported by the evidence.

It will be argued that the statute thus construed may operate harshly upon passengers boarding aircraft with articles which potentially are deadly or dangerous weapons. Balanced against the heavy risks to large numbers of passengers, including those who would carry such weapons on board with no evil purpose, we cannot say that the resulting effect is too severe. It requires no recitation of recent history to remind us that such risks are real, and in comparison, the statute — broad though its reach may be — is a reasoned response to a demonstrated need.

Affirmed.

1 . At the time of the incident in question, the statute provided in relevant part:

[Wjhoever, while aboard an aircraft being operated by an air carrier in air transporta- • tion, has on or about his person a concealed deadly or dangerous weapon, or whoever attempts to board such an aircraft while having on or about his person a concealed deadly or dangerous weapon, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

In 1974 the statute was slightly modified. See Air Transportation Security Act of 1974, Pub.L. 93-366, § 203 (Aug. 5, 1974), 1974 U.S. Code Cong. & Admin.News pp. 468 — 469. See note 8 infra.

2 . Honorable Robert Van Pelt, Senior United States District Judge, District of Nebraska.

3 . One of the guards, Mrs. Dupong, testified that she saw defendant remove the box from a paper sack. Flum testified that the box was never in the sack. We resolve that issue, as we must, in the light most favorable to the government. United States v. Swanson, 509 F.2d 1205, 1210 (8th Cir. 1975); United States v. Hutchinson, 488 F.2d 484, 489 (8th Cir. 1973), cert. denied sub nom. Ennis v. United States, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 2616 (1974).

4 . The FAA guidelines furnished to preboard screening personnel define as dangerous:

KNIVES — All sabres, swords, hunting knives, and such other knives considered illegal by local law.

No contention is here made that the guards exceeded the guidelines in this case or that the knives were not in fact dangerous and deadly. Compare United States v. Margraf, 493 F.2d 1206 (3d Cir. 1974) (en banc).

5 . In view of our holding, it is unnecessary to review the circumstantial evidence which the government alternatively contends would establish such intent. Moreover, the District Court made no finding with respect to intent, and were we to adopt defendant’s interpretation of the statute, it would be necessary to remand for further proceedings.

6 . See note 1 supra.

7 . Both before and after the 1974 amendments, 49 U.S.C. § 1472(i) authorized a minimum penalty of 20 years imprisonment for aircraft piracy, defined to include an element of “wrongful intent.” See also, e.g., 49 U.S.C. § 1472, subsections (b), (c), (f) and (m)(2).

8 . In 1974 the statute was amended to extend the provisions of subsection (I) to include “any bomb, or similar explosive or incendiary device * * See note 1 supra. In addition, Congress made it a felony offense to “willfully and without regard for the safety of human life * * * commit an act prohibited by * * * this subsection * * *.”

9 . Defendant relies upon United States v. Brown, 508 F.2d 427 (8th Cir. 1974), wherein a divided panel of this court reversed and remanded on the issue of concealment. The case was originally tried to a United States Magistrate upon a stipulation of the facts, which included a stipulation that a tear gas gun was located inside a flight bag. The district court affirmed, holding that the concealment of the weapon had been “amply proved.” United States v. Brown, 376 F.Supp. 451, 457 (W.D.Mo.1974). The majority held that the stipulated evidence was equivocal, that the magistrate had failed to make a specific finding of concealment, and that the district court as the reviewing court lacked power to enter a de novo finding; accordingly it remanded the case for further proceedings. To the extent that any dicta therein may impliedly suggest that intent is a necessary ingredient of the element of concealment, we decline to follow it, in light of our en banc holding today.

10 . No issue of scienter is present in this case. It is undisputed that defendant knew the nature and approximate location of each of the knives. Compare United States v. Lee, 383 F.Supp. 1033 (E.D.Tenn.1974) (requiring proof of knowledge but not intent), with United States v. Harris, 381 F.Supp. 1095 (E.D.Pa.1974) (holding proof neither of knowledge nor of intent required).