United States v. William Turner

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2019
• Docket: 17-10299
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10299

Plaintiff-Appellee, D.C. No. 1:16-cr-00207-SOM

v. MEMORANDUM* WILLIAM TURNER,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, District Judge, Presiding

Argued and Submitted February 12, 2019 Honolulu, Hawaii

Before: TALLMAN, BYBEE, and N. RANDY SMITH, Circuit Judges.

William Clark Turner appeals the district court’s judgment of conviction

after a jury trial on charges that he interfered with a flight attendant discharging her

duties by intimidation, in violation of 49 U.S.C. § 46504. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Turner argues that the district court’s instruction defining “intimidation” is

reversible error. We do not reach this argument because Turner has waived it.

United States v. Burt, 143 F.3d 1215, 1217 (9th Cir. 1998) (“A defendant’s right to

challenge a jury instruction is waived if the defendant considered the controlling

law and ‘in spite of being aware of the applicable law, proposed or accepted a

flawed instruction.’”) (quoting United States v. Perez, 116 F.3d 840, 845 (9th Cir.

1997) (en banc)). Because Turner’s trial counsel approved the definition when he

signed the parties’ joint proposed jury instructions, and because those proposed

instructions explicitly cited the authority Turner now relies on to argue for

reversible error, this argument is waived under the invited error doctrine.

2. As to the specific issue to which he did object at trial, i.e., that the word

“knowingly” should have appeared in the court’s jury instruction before the word

“intimidate,” we cannot conclude there was error because “knowingly” does not

appear in the statute. See 49 U.S.C. § 46504. We have previously held that the

statute Turner was charged with violating is a “general intent” crime, United States

v. Meeker, 527 F.2d 12, 14 (9th Cir. 1975), and the word “intimidation” is

adequate to describe the mens rea for the commission of voluntary acts which

produce it. In any event, any error would be harmless beyond a reasonable doubt.

See Kilbride, 584 F.3d at 1247. Turner, among other things, threatened to “break

the neck” of other passengers during the altercation. The evidence was

2 overwhelming that Turner’s intentional behavior intimidated the flight attendant by

causing her to reasonably fear for the safety of her passengers and herself, thereby

diverting her from performing other duties aboard the aircraft. See Meeker, 527

F.2d at 15; see also United States v. Koshnevis, 979 F.2d 691, 696 (9th Cir. 1992)

(instructional errors related to knowledge are “harmless where the evidence of

knowledge was overwhelming”) (quotation omitted).

3. Turner argues that a limiting instruction should have been given after the

district court granted his Rule 29 motion for judgment of acquittal on the charge

that Turner had intimidated or interfered with the pilot. However, Turner never

requested such an instruction, so we review this issue for plain error. See Perez,

116 F.3d at 845; see also United States v. Lazarenko, 564 F.3d 1026, 1043–44 (9th

Cir. 2009). Due to the strength of the government’s case against him and the

district court’s careful and otherwise appropriate instruction of the jury, the lack of

a limiting instruction was not plain error. See Lazarenko, 564 F.3d at 1043–44.

4. We decline to reach Turner’s ineffective assistance claim because the record

is not sufficiently developed to properly evaluate the issue. See United States v.

McKenna, 327 F.3d 830, 845 (9th Cir. 2003).

AFFIRMED.