IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-6272 _____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JIMMY HICKS, JERRY CANTY, and LATONYA MOORE,
Defendants-Appellants
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas _________________________________________________________________ ( December 23, 1992)
Before KING, JOHNSON and DUHé, Circuit Judges.
KING, Circuit Judge:
Appellants, passengers aboard a commercial airline flight
from Jamaica to Houston, were convicted of "intimidating" members
of the flight crew "so as to interfere with" the performance of
their duties, in violation of 49 U.S.C. § 1472(j). Appellants
raise a number of claims on appeal, most notably a first
amendment challenge to § 1472(j). After carefully considering
all their claims, we affirm. I.
Appellants Jimmy Hicks and Latonya Moore, who were traveling
companions, boarded Continental Airlines Flight 1919 in Montego
Bay, Jamaica on July 23, 1991. The flight, carrying
approximately 145 passengers, was bound for Houston. Hicks
carried on board a "boombox," a portable stereo system consisting
of an AM-FM radio, a tape player, and speakers. Immediately
after boarding and taking a seat, Hicks discovered that his seat
was malfunctioning, which prevented him from sitting next to
Moore. Hicks subsequently requested that Melissa Bott, the
aircraft's flight service manager, find alternative seating for
them. Bott responded that she could do so only after everyone
with pre-assigned seating had claimed their seats. Hicks
expressed his displeasure with Bott's response by using the
expletive "shit." Rather than following Bott's instructions,
Hicks immediately proceeded to procure alternative seating by
offering another passenger free drinks in exchange for his seat.
Also, during this time, Bott observed Hicks remove a newspaper
from another passenger's lap. The passenger -- a total stranger
to Hicks -- protested that he had not yet finished reading the
paper. Hicks angrily threw the paper back at the other
passenger. Bott said that she was "alarm[ed]" by Hicks' extreme
arrogance.
Shortly thereafter, still prior to take-off, Moore turned on
the radio component of the boombox. Bott testified that the
radio was playing "loud[ly]." Bott immediately approached Moore
2 and informed her that Federal Aviation Administration (FAA)
regulations prohibited the playing of radios on board aircraft
because radio-playing interferes with the proper functioning of a
plane's navigational equipment. Moore agreed to turn the radio
off -- but only for the time being, as later events would prove.
Following take-off, one of the flight attendants, Eileen
DuBois, heard loud music playing on the aircraft; she noticed
that Hicks and Moore once again were playing their boombox.
After DuBois approached Hicks, he claimed that he was playing an
audio tape rather than the radio. DuBois informed him that
Continental policy required that passengers may only listen to
tape players through headphones. Hicks angrily refused to turn
off the machine, claiming that all of the passengers seated
within listening range desired to hear his tape. Hicks' claim
was in fact somewhat unfounded.1 Rather than confronting Hicks
any further, DuBois believed that the wisest course was to inform
her superior, Melissa Bott, of Hicks' refusal to use headphones.
Bott subsequently entered the cockpit to apprise the captain of
the situation.
The captain instructed Bott to order Hicks and Moore to
discontinue use of the boombox. The captain stated that he
believed that the playing of the radio was the cause of the
malfunctioning of aircraft's navigational equipment during the
1 Sibok Kim, his wife, and his two children were seated two rows immediately behind Hicks. Kim testified that neither Hicks nor Moore ever asked the Kim family whether they wished to hear the music.
3 plane's ascension to cruising altitude. Prior to Bott's entry
into the cockpit, the captain and his first and second officers
had attempted in vain to determine why the navigational equipment
had failed, including running internal tests on the equipment,
contacting a nearby American Airlines aircraft to inquire if it
was experiencing similar difficulties, and contacting the airport
in Jamaica to see if the malfunctioning was the result of a
problem in the air traffic control tower. By the time Bott
informed him of appellants' radio-playing, the captain had
already concluded that the source of the problem was within the
aircraft, although not equipment-related. Bott's report about
the boombox strongly suggested that Hicks and Moore had continued
to play the radio after being instructed not to do so.
Before Bott returned to the portion of the aircraft occupied
by Hicks and Moore, another flight attendant, Carol McWilliams,
approached them after other passengers complained about the
boombox. McWilliams informed Hicks that he must not play the
radio -- as it would interfere with the plane's navigational
equipment -- and that if he played a tape he must use headphones.
Hicks responded that McWilliams was "the third bitch" who had
complained about the boombox. He also angrily ordered her to
serve him a drink. At that point, Moore interjected that all of
the passengers around them wished to hear the boombox. Like
DuBois before her, McWilliams realized that Hicks and Moore were
too obstinate to reason with; the flight attendant thus went to
the front of the aircraft to inform Bott. As McWilliams walked
4 up the aisle, she met Bott, who was coming from the cockpit.
McWilliams informed Bott of Hicks and Moore's continued non-
compliance.
Bott again approached Hicks and Moore. She requested that
they should turn the boombox over to her for the remainder of the
flight. Hicks responded that the "f---ing radio was going to
stay on" and that he would not relinquish it to anyone. In a
confrontational manner, he then passed it to Moore and stated "if
you want the radio, you need to get it from her." Moore also
refused to give up the boombox and cursed at Bott. Moore firmly
stated that "the radio is going to stay on," and ordered Ms. Bott
to get her "ass[] back there and do [her] job to get them
something to eat and drink." She also ordered the flight
attendants to "quit bothering" them. At this point, Appellant
Canty, who was seated nearby but who was not a traveling
companion of Hicks and Moore, intervened and began to curse at
Bott and McWilliams. No member of the flight crew had heretofore
directed any comment to Canty. Bott stated that she asked
appellants not to use profanity, as young children were seated
nearby. Bott also stated that she began to feel "frightened" by
appellants' increasingly angry obstinacy, although all the while
she maintained her composure.
Bott returned to the cockpit to inform the captain of the
latest developments in the escalating disturbance. At that
point, the captain instructed his second officer to attempt to
retrieve the boombox. In the meantime, McWilliams had another
5 encounter with Hicks and Moore, although this time Canty again
vocalized his own angry sentiments to the flight attendant.
McWilliams directed appellants' attention to a Continental
Airlines flight magazine wherein the proscription on radio
playing and the requirement that a tape player could be played
only with headphones were clearly set forth. Canty angrily
responded that McWilliams should "get out of [his] face."
Shortly thereafter, the second officer, Jim McKelvain,
arrived and informed Hicks and Moore that their radio had
interfered with the aircraft's navigational equipment. He asked
them to relinquish the boombox. Hicks told the second officer
"to get f---ed" and that Hicks would rather pay a fine than
cooperate. The second officer described Hicks as totally
"uncooperative," even after being told that he was violating
federal law. As he had done when confronted with Bott's demand
to turn over the boombox, Hicks proceeded to pass it to Moore.
Moore refused to hand it over to the second officer, even after
the officer stated that rather than confiscating it, he would
merely place it in the overhead compartment located above Hicks
and Moore.
Hicks then instructed the second officer to get his "mother-
f---ing ass to the cockpit" and fly the plane. The second
officer returned to the cockpit and informed the captain of his
belief that physical force would be required to retrieve the
boombox. Meanwhile, Bott was making a last ditch effort to
explain to Hicks and Moore that they were violating federal law.
6 Moore stated that she did not care and that she was going to keep
the boombox in her possession. Hicks stated that all of the
passengers around him wished to hear the radio and that he did
not care about a "f---ing" fine; in fact, he claimed, he would
"buy the f---ing airplane." According to Bott, Hicks'
countenance was extremely menacing. Furthermore, Canty "kept
turning around and saying things the whole time I kept trying to
talk to Miss Moore or Mr. Hicks." Among other things, Canty
angrily stated "f--- you bitch" to Bott and told her to leave
Hicks, Moore, and Canty alone. Bott also stated that the volume
of the boombox was intentionally increased. Without identifying
particular passengers, Bott also stated that "[a]t that point
everyone around them . . . were laughing" and that someone began
to videotape Bott with a portable camera.
Bott and McWilliams testified that, because of the
disturbance, for a significant amount of time numerous members of
the flight crew were unable to perform their regular duties
aboard the aircraft. Bott, McWilliams, and Dubois also stated
that they were very much intimidated by Hicks, Moore, and Canty.
At one point during her efforts to retrieve the boombox, Bott
testified, she felt the need visually to locate fire
extinguishers to use in her defense in the event that she was
physically assaulted by any or all of the three passengers. Bott
also stated that numerous passengers seated around the
disturbance had expressed their fear "that a riot . . . might
break out."
7 Realizing that further efforts to retrieve the boombox
would be futile -- short of physical force -- the captain
diverted the aircraft's course to Cancun, Mexico, where an
unscheduled landing occurred. The captain stated that he was
unwilling to order the crew members to attempt to retrieve the
boombox by physical force. He was also unwilling to risk the
possibility that further radio playing would again interfere with
the aircraft's navigational equipment. Upon landing, Mexican
authorities removed several passengers from the plane, including
Hicks, Moore, and Canty. Canty initially refused to deplane.
It is undisputed that, throughout the flight, none of the
appellants committed assault or battery or verbally threatened
any Continental flight crew member with physical harm. Rather,
according to the testimony of the various members of the
Continental flight crew, intimidation resulted solely from
appellants' verbal and non-verbal expressive activity --
consisting primarily of appellants' repeated angry and profane
remarks, although also including menacing stares, the refusal by
Hicks and Moore to relinquish the boombox, and the intentional
increase in the boombox's volume by Hicks and Moore. Bott also
cited Hicks and Moore's repeated passing of the boombox between
themselves after being asked to relinquish it. The Government
argues that such intimidating expression, which occupied the
attention of numerous members of the flight crew for a
significant amount of time and ultimately caused the plane to be
8 diverted to Cancun, is the gravamen of appellants' § 1472(j)
violation.
On September 4, 1991, a jury found Hicks, Moore, and Canty
guilty of violating 49 U.S.C. § 1472(j).2 Sentencing occurred in
the following November. Hicks was sentenced to fourteen months
imprisonment to be followed by three years of supervised release.
Moore was sentenced to eight months imprisonment to be followed
by three years of supervised release. Canty was sentenced to
four months imprisonment to be followed by three years of
supervised release. All three appellants were also each ordered
to pay restitution in the amount of $1,871.35 to Continental
Airlines, as well as a special assessment of $50.00.
II.
A. The first amendment challenge
Appellants Hicks and Moore3 claim that their convictions
under 49 U.S.C. § 1472(j) are in violation of the free speech
2 That provision reads, in pertinent part, as follows:
(j) Whoever, while aboard an aircraft within the special aircraft jurisdiction of the United States, assaults, intimidates, or threatens any flight crew member or flight attendant (including any steward or stewardess of such aircraft), so as to interfere with the performance by such member of his duties, shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. * * *
For convenience's sake, we shall refer to cockpit crew members, the flight service manager, and all flight attendants as "flight crew members." 3 Appellant Canty raised one issue on appeal: whether the district court erred by failing to instruct the jury that a violation of § 1472(j) was a specific intent crime. See infra Part II.D.
9 clause of the first amendment to the United States Constitution.
Appellants specifically claim that the statute's operative term
"intimidate" is overbroad
because a person using profanity, which is not specifically [proscribed by] the statute, [but] which is constitutionally protected, could be accused of violating the statute. . . . That is, the [statutes's use of the] word "intimidate" cannot be limited to core criminal conduct but becomes an enforceable ordinance generally prohibiting [profane] speech, which is constitutionally protected. . . . By including . . . the term "intimidate" the statute fails to properly exclude [profane] speech which [is] protected by the First Amendment but which may also cause intimidation.
Although this passage from Hicks and Moore's briefs appears to be
challenging the statute solely on overbreadth grounds, in reply
briefs appellants respond that their "overbreadth challenge is
both to the face of the statute, and as applied to the facts in
this case" (emphasis added).
The Government argues that not only is § 1472(j) not
overbroad, but also that "profanity [such as that spoken by
appellants] used . . . to intimidate is proscribable speech. . .
. It is similar to fighting words and obscenity." The
Government proceeds to note, though, that § 1472(j) "proscribes
intimidation of crew members that interferes with their duties,
not profanity. It is not a content regulation of speech. . .
[T]o the extent that it proscribes profanity used to intimidate
crew members aboard an aircraft in flight, that proscription is
permissible," as merely an "incidental" restriction on speech.
At oral argument, however, the Government repeated its argument
that profanity in general is not protected speech and, for that
10 reason, appellants have no basis for challenging the statute on
first amendment grounds.
We agree with the Government that § 1472(j) does not violate
the first amendment, although we do not rely on the totality of
the Government's reasoning to reach this result. In addressing
this claim, we are required to address both parts of appellants'
two-pronged challenge -- that the statute is both overbroad and
in violation of the first amendment as applied to the facts of
the instant case.
i) The overbreadth challenge
Appellants have made a spirited attempt to invalidate §
1472(j) on overbreadth grounds; however, as is evident from the
above-quoted passage from their briefs, they have misconceived
the overbreadth doctrine, at least as it applies to the instant
case. Appellants argue that the term "intimidate" is overbroad
in that it effectively criminalizes a form of speech -- simple
profanity or vulgarity -- that may well intimidate, but should
nevertheless be afforded protection under the first amendment.4
While such an argument at first blush appears to be an
overbreadth challenge, appellants are in fact only making a
substantive challenge to § 1472(j) as it applies to intimidating
4 We agree with appellants that the profanity generally is protected by the first amendment. However, the statute that appellants are challenging does not criminalize profanity per se, but instead criminalizes any speech or conduct, which may incidentally include profanity, that intimidates an airline's flight crew so as to interfere with the performance of their duties. See infra Part II.A.ii.
11 profanity or vulgarity such as that used by appellants.
Appellants have not argued that "intimidate" is overbroad in that
it may also chill other types of protected expression besides
profanity.
Appellants fail to realize that the rationale of the
overbreadth doctrine is to protect the expressive rights of third
parties who are not before the court. An overbreadth challenge
is not appropriate if the first amendment rights asserted by a
party attacking a statute are essentially coterminous with the
expressive rights of third parties. See Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 504 (1985) (Courts need not
entertain an overbreadth challenge "where the parties challenging
the statute are those who desire to engage in protected speech
that the overbroad statute purports to punish . . . . There is
then no want of a proper party to challenge the statute, no
concern that the attack on the statute will be unduly delayed or
protected speech discouraged."); Members of the City Council of
the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,
801-02 (1984) ("[Appellees] have . . . failed to identify any
significant difference between their claim that the ordinance is
invalid on overbreadth grounds and their claim that it is
unconstitutional when applied to their political signs.");
International Society for Krishna Consciousness of New Orleans,
Inc. v. City of Baton Rouge, 876 F.2d 494, 499-500 (5th Cir.
1989) (citing Vincent); L. Tribe, Constitutional Law, § 12-27, at
1022-24 & n.7.
12 Even if appellants had argued that § 1472(j) is overbroad
because it chills expression other than profanity or vulgarity,5
we do not believe that such an overbreadth challenge would be
viable. The only type of protected speech6 besides profanity
that would have the potential to intimidate a reasonable person
would be non-profane invective.7 Even assuming, without
deciding, that § 1472(j) could not constitutionally criminalize
such angry non-profane invective, we observe that the statute's
potential to criminalize such speech is too insubstantial to
permit an overbreadth challenge. "It is clear . . . that the
mere fact that one can conceive of some impermissible
5 According to the Supreme Court in Vincent, a party challenging a statute as overbroad has the burden "to demonstrate a realistic danger that the ordinance will significantly compromise First Amendment protections of individuals not before the Court." 466 U.S. at 802; see also International Society for Krishna Consciousness, 876 F.2d at 500. 6 We note that profanity should be distinguished from two somewhat related, but distinguishable, species of non-protected speech -- "fighting words" and obscenity. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (fighting words not protected); Miller v. California, 413 U.S. 15 (1973) (obscenity not protected). With reference to remarks made in the instant case, we believe that none rose to the level of "fighting words" or obscenity. 7 For instance, we can hypothesize a scenario in which an intoxicated airline passenger becomes angry at a member of the flight crew because of the crew member's refusal to serve alcohol to the passenger. The passenger could hurl non-profane invective at the crew member, which -- depending on the tenor of the invective -- could intimidate the crew member so as to interfere with the performance of his duties. A similar hypothetical was actually mentioned by the sponsor of 49 U.S.C. § 1472(j) in the United States Senate. See remarks of Senator Engle, 107 Cong. Rec. 17170 (August 28, 1961) (hypothesizing scenario of "a drunk quarrelling with a stewardess over whether or not he could keep his bottle").
13 applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge." Vincent, 466 U.S. at
800. Rather, a party challenging a statute on overbreadth
grounds must demonstrate that there is a "substantial" potential
that the overbroad statute will chill third parties' speech. See
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).8 We believe
that § 1472(j) does not pose a "substantial" threat of
overbreadth.
8 Unlike the party who successfully challenged a somewhat similar statute invalidated on overbreadth grounds by this court and later by the Supreme Court in City of Houston v. Hill, 482 U.S. 451 (1987), aff'g, 789 F.2d 1103 (5th Cir. 1986) (en banc), appellants have not offered any proof that there is a realistic and substantial danger that § 1472(j) will be used to chill constitutionally protected speech. In Hill, the plaintiff actually documented numerous prior instances where the challenged statute had been used to chill constitutionally protected speech. See 789 F.2d at 1113-14 (Appendix to majority opinion.) Appellants have offered no such data. Our own research of reported cases has revealed that § 1472(j) has resulted in relatively few convictions. Of those convictions discussed in reported decisions, the type of activity prosecuted invariably has not been protected by the first amendment. See Annotation, Construction and Application of § 902(i-l) of Federal Aviation Act of 1958, as Amended (49 U.S.C. § 1472(i-l), Punishing Aircraft Piracy, Interference with Flight Crew Members, and Other Crimes Abroad Aircraft in Flight, 10 A.L.R. Fed. 844 (& Supp.) (discussing cases); Annotation, Validity, Construction, and Application of Provisions of Federal Aviation Act Punishing Air Piracy and Certain Acts Aboard Aircraft in Flight, or Boarding Aircraft, 109 A.L.R. Fed. 488, § 17B (discussing cases). In every reported case in which a § 1472(j) conviction has occurred, the defendant has not simply engaged in "pure speech," whether profane language or non-profane invective, but has also directly threatened, assaulted, or battered a member of the flight crew. See, e.g., United States v. Tabacca, 924 F.2d 906 (9th Cir. 1991); United States v. Hall, 691 F.2d 48 (1st Cir. 1982); United States v. Meeker, 527 F.2d 12 (9th Cir. 1975); Mims v. United States, 332 F.2d 944 (10th Cir. 1964).
14 ii) The as-applied challenge
There is still a need to review appellants' first amendment
challenge to § 1472(j) as applied to the facts of the instant
case. As an initial matter, we must address the Government's
threshold contention that profanity is not constitutionally
protected speech. This argument is meritless. The Supreme Court
has long held that, as a general rule, simple profanity or
vulgarity -- not rising to the level of "fighting words" or
obscenity -- is constitutionally protected speech.9 See, e.g.,
Lewis v. City of New Orleans, 415 U.S. 130 (1972); Gooding v.
Wilson, 405 U.S. 518 (1972); Cohen v. California, 403 U.S. 15
(1971); see generally Tribe, supra, § 12-10, at 849-56.
Although we disagree with the Government's broad contention
about the constitutional status of profanity, we do recognize
that general rules do have their exceptions. As the Supreme
Court has repeatedly held, first amendment protections are not
absolute, even in cases involving "pure speech." See, e.g.,
Elrod v. Burns, 427 U.S. 347, 360 (1976) ("the proscription on
encroachment of First Amendment protections is not an absolute").
9 By "profanity" or "vulgarity," we refer to words that, while not obscene, nevertheless are considered generally offensive by contemporary community standards. Cf. FCC v. Pacifica Foundation, 438 U.S. at 741 (discussing humorist George Carlin's "Filthy Words" monologue as qualifying as "indecent" or "profane" language). We note that such words usually refer to "offensive sexual or excretory speech." Id. at 743. We also believe that certain other language, at least when used in certain contexts, qualifies as profanity. For instance, with reference to the instant case, we believe that Appellant Canty's angry reference to Ms. Bott as a "bitch" and Appellant Moore's angry admonition that Ms. Bott should get her "ass" to the plane's kitchen qualified as profane.
15 In the instant case, we believe appellants' use of angry
profanity and vulgarities may be constitutionally criminalized.
We note at the outset of our first amendment analysis that
the Supreme Court has traditionally bifurcated its review of
statutes challenged on first amendment grounds between cases
involving a content-based regulation of speech and cases
involving a content-neutral "time, place, or manner" restriction.
See generally Tribe, supra, § 12-2, at 789-794. The Court has
applied significantly greater scrutiny to content-based
regulation, requiring a "compelling" governmental interest to
justify the curtailment of speech based on its content and also
requiring that the statute be "`narrowly drawn to achieve that
end.'" Simon & Schuster, Inc. v. Members of New York Crime
Victims Bd., 112 S. Ct. 501, 509 (1992). Conversely, the Supreme
Court has been somewhat more deferential to legislative efforts
to regulate time, place, and manner of expression -- requiring
only a "substantial" governmental interest and "narrow
tailoring," so long as such regulations are content-neutral. See
Ward v. Rock Against Racism, 491 U.S. 781, 791-92, 796 (1989)
("reasonable" regulations on time, place, or manner "only if they
are 'justified without reference to the content of the speech'"
and if they are "`narrowly tailored to serve a substantial
governmental interest'") (citations omitted).
Rather than discriminating against protected profanity or
vulgarity, the statute reasonably regulates the time, place, and
manner of speech, irrespective of its particular content. The
16 content of passengers' speech is thus regulated only in an
incidental fashion. Only intimidating speech in a quite limited
context is proscribed. See CISPES v. Federal Bureau of
Investigation, 770 F.2d 468 (5th Cir. 1985).10 In other
contexts, profanity -- even if intimidating -- would not go
unprotected. See, e.g., Nash v. State of Texas, 632 F. Supp.
951, 972-76 (E.D. Tex. 1986) (intimidating language in context of
labor strikes is protected by first amendment).
Nevertheless, even if we were to accept appellants'
argument that § 1472(j) does discriminate against profane or
vulgar language, and thus apply the more stringent analysis
required in cases involving a content-based regulation, we would
still hold that the statute is constitutional. Assuring the
utmost in airline safety is the clear purpose behind § 1472(j).
See United States v. Meeker, 527 F.2d 12, 14 (9th cir. 1975)
("[T]he goal which Congress sought in this provision . . . was to
deter [acts] which, if committed on the terrain below, might be
10 In CISPES, this court was faced with a first amendment challenge to a federal statute that criminalized, inter alia, the act of "willfully . . . intimidat[ing] . . . a foreign official in the performance of his duties." Id. at 471 n.2. We held that the statute was not content-based: [T]he statute here does not permit the government to discriminate on the basis of the content of expression. To the extent that it applies at all to protected conduct, it is not a restriction on any particular message. It merely proscribes actions of a threatening or intimidating nature directed at any protected official, and First Amendment rights are affected only to the extent that their exercise might serve to create such intimidation . . . ."
Id. at 474.
17 considered relatively minor, but when perpetrated on an aircraft
in flight would endanger the lives of many.") In view of the
special context of air travel -- pressurized vessels routinely
carrying hundreds of passengers and traveling at speeds of up to
600 miles per hour and 40,000 feet above the ground -- we cannot
gainsay that there is a compelling governmental interest for §
1472(j). Congress did not unnecessarily infringe passenger's
first amendment liberties to use intimidating profanity. The
potential for disaster being so great, even the more mundane
duties of flight attendants which implicate safety cannot be
taken for granted. Moreover, we note that in the instant case,
it was not only flight attendants, but also a member of the
cockpit crew whose duties were interfered with by appellants.
We also believe that the statute is narrowly tailored. It
does not cast a sweeping net at amorphous categories of speech.
See, e.g., Gooding v. Wilson, 405 U.S. 518, 523 (1972)
(invalidating statute that proscribed "opprobrious" or "abusive"
language). Rather, the statute requires a passenger to
"assault[], intimate[], or threaten[] . . . so as to interfere"
with a crew member's duties. 49 U.S.C. § 1472(j). "Intimidate,"
the operative term in the instant case, is a word that is not
simply associated with a type of speech, but includes conduct as
well.11 In fact, it encompasses only a relatively narrow range
11 We note that at least Appellants Hicks and Moore engaged not merely in intimidating speech, but also intimidating conduct. The parties, however, had limited their arguments to the speech elements of appellants' intimidation.
18 of speech, which frequently will be a concomitant of intimidating
conduct, as in the instant case. Moreover, only intimidating
acts or words that actually interfere with a crew member's duties
are penalized. Usually only extreme or repeated intimidation --
such as that in the instant case -- will actually have the effect
of interfering with a crew member's duties.
We hold that § 1472(j) is constitutional as applied to
appellants in the instant case.
B. Vagueness
Appellants have raised a related challenge to the statute as
being unconstitutionally vague. This argument is also without
merit. We observe that the instant case is not an appropriate
one in which to raise a void-for-vagueness challenge. "In a
facial challenge to the . . . vagueness of a law[], a court's
first task is to determine whether the enactment reaches a
substantial amount of constitutionally protected conduct."
Village of Hoffman Estates v. Flipside, 455 U.S. 489, 494-95
(1982). If the statute does not proscribe a "substantial" amount
of constitutionally protected conduct, a party may raise a void-
for-vagueness challenge only if "the enactment is impermissibly
vague in all of its applications." Id. at 495 (emphasis added).
As we discussed in connection with appellants' overbreadth
challenge, the statute does not reach a "substantial" amount of
constitutionally protected conduct. Thus, because § 1472(j)
obviously is not impermissibly vague in all its applications,
19 appellants' void-for-vagueness challenge must fail. Furthermore,
we note that "[o]ne to whose conduct a statute clearly applies
may not successfully challenge it for vagueness." Id. at 495
n.7. There is no question that appellants' conduct violated §
1472(j). Nevertheless, we note that the Ninth Circuit, in a
void-for-vagueness challenge in which the court actually reached
the merits, has upheld § 1472(j). See United States v. Tabacca,
924 F.2d 906, 913 (9th Cir. 1991).
C. The definition of "intimidation" in the jury charge
The district court's jury instruction with regard to the
term "intimidate," as used in § 1472(j), was as follows:
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.
Appellants objected to this charge and requested what they
claimed was a more appropriate "dictionary" definition of
"intimidate" -- "to compel or deter by or as if by threats" --
which the district court denied.12
Rejection of appellants' argument here requires little
discussion. "In reviewing a challenge to a jury charge, we must
determine whether a court's charge, as a whole, was a correct
statement of the law. When the complaint is that the trial court
12 This definition is listed in Websters New Collegiate Dictionary (1979), at p. 600, as a part of a larger definition: "[T]o make timid or fearful: Frightful; esp: to compel or deter by or as if by threats."
20 refused to give a requested instruction, this court must
determine whether this refusal was an abuse of discretion."
United States v. Sellers, 926 F.2d 410, 414 (5th Cir. 1991). Our
research indicates that the most commonly understood "dictionary"
definition of "intimidate" is in fact the one given by the court
-- namely, to place a person in fear. Interestingly, this was
the primary definition listed in Webster's New Collegiate
Dictionary, the dictionary cited by appellants at trial;
appellants requested a more specific, secondary definition.
While 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. Indeed, § 1472(j) uses the terms "threaten" and
"intimidate" in the disjunctive.
We also observe that the district court not only instructed
the jury correctly on the definition of "intimidate," but
actually charged the jury in a way that was considerably more
favorable to appellants than the instruction requested by
appellants. Appellants' proposed instruction encompassed
subjective intimidation -- i.e., intimidation that results from
another's words or acts, whether or not the intimidated party's
perception is reasonable. Conversely, the district court
instructed jurors that they could find that intimidation occurred
only if a reasonable person would have been intimidated by
21 appellants' words and conduct.13 The district court did not
abuse its discretion.
D. General or specific intent?
Appellants14 contend that a violation of § 1472(j) requires
a specific, as opposed to general, intent. Appellants argue that
the district court erred by giving only a partial specific intent
instruction.15 We observe that the 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. The appellants argue that the
district court nevertheless should have gone further and charged
the jury that it could convict only if it also found that
13 The district court apparently adopted the objective definition of "intimidate" from that given by the district court in United States v. Meeker, 527 F.2d 12, 15 (9th Cir. 1975), a case involving a § 1472(j) violation. 14 This was the only claim raised by Appellant Canty on appeal. 15 The district court's charge regarding the mens rea necessary for a conviction read as follows:
For you to find the defendant[s] guilty of this crime, you should be convinced that the United States has proved each of the following beyond a reasonable doubt:
* * *
(2) the defendant(s) knowingly and unlawfully intimidated any flight crew member of flight attendant (including any steward or stewardess),
(3) So as to interfere with the crew member(s) or flight attendant(s) performance of their duties, or to lessen the ability of the crew member(s) or flight attendant(s) to perform their duties . . . .
22 appellants knowingly intimidated with the specific intent to
interfere with a crew member's duties. As the charge read, it
only required a specific intent to intimidate, not a specific
intent to interfere.
The only other court to directly address this issue is the
Ninth Circuit. In United States v. Meeker, 527 F.2d 12, 14 (9th
Cir. 1975), the court held that § 1472(j) is a general intent
crime. See also United States v. Brice, 926 F.2d 925, 929 (9th
Cir. 1991); cf. United States v. Busic, 592 F.2d 13, 21 (2d Cir.
1978) (49 U.S.C. § 1472(i), a related statutory provision
criminalizing air piracy, held to be general intent crime). We
agree that § 1472(j) is a general intent crime. The paramount
purpose of the statute, as we discussed supra, is to ensure that
passengers do not impede airline crew members' duties, many of
which are critical to the safe operation of the aircraft. As the
Meeker court explained, "we . . . construe § 1472(j) as a general
intent crime, in harmony with the [compelling] statutory purpose
of safeguarding flight personnel from any statutorily described
acts which would interfere" with their duties. 527 F.2d at 14.
Whether a passenger specifically intends to interfere with
those duties is irrelevant. General intent is all that Congress
required, as is evident from the plain language of the statute --
in particular, Congress' failure to use a term such as
"willfully," "intentionally," or "knowingly," and Congress'
selection of the phrase "so as to interfere." See United States
v. Lewis, 780 F.2d 1140, 1143 (4th Cir. 1986) (courts should
23 presume statutes require only general intent "[i]n the absence of
an explicit statement that a crime requires specific intent").16
Appellant Canty additionally argues that the court erred in
giving the jury an aiding-and-abetting instruction that required
specific intent, if the statute itself only requires general
intent. This created an impermissible anomaly, Canty argues. We
observe that Canty did not object to this aspect of the jury
charge. Thus, we can only review this claim for plain error.
Fed. R. Crim. P. 52(b). We find no such error. Indeed, if
anything, such an instruction was salutary error, which likely
benefitted Canty, as it may have led jurors to believe that they
could convict Canty only if they found that he possessed a
specific intent to violate § 1472(j).
E. Sufficiency of the evidence
Appellants challenge the sufficiency of the evidence
supporting their convictions. We begin by noting the familiar
standard of review of sufficiency claims, which was articulated
by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319
(1979) -- whether, based on the totality of evidence at trial,
16 Appellant Canty at one point in his brief argues that § 1472 is a strict liability crime, which is disfavored in our law except for minor offenses. See Morissette v. United States, 342 U.S. 246 (1952). We disagree that § 1472(j) imposes strict liability. The statute requires intent for the intimidation element of the statute; the statute merely requires no mens rea for the result of the intimidation, i.e., causing interference with crew members' duties. The gravamen of the offense -- for which intent is required -- is intimidation, not interference. Interference with the flight crew is merely an attendant circumstance.
24 and all reasonable inferences therefrom, and in a light most
favorable to the Government, a rational juror could find all
elements of an offense beyond a reasonable doubt.
i) Whether there was sufficient evidence of "intimidation"?
Appellants Hicks and Moore argue that mere words -- at least
words that do not constitute a direct threat -- cannot constitute
intimidation. We disagree. As we noted in our discussion of the
district court's definition of "intimidate," that term is not
synonymous with "threaten." With respect to the evidence
presented by the Government at trial, we observe that numerous
members of the Continental flight crew testified that appellants
intimidated them. In the environment in which appellants'
statements17 were made -- the closed quarters of an airplane --
the extreme and repeated profanity which they used, when combined
with the angry tenor of their words, certainly would intimidate a
reasonable person. Appellants' words were not merely indicative
of aimless frustration; rather, they evinced extreme anger vis-a-
vis particular persons, namely Continental flight crew members.
The intimidation was thus likely even greater in Hicks' case.
Finally, we observe that it was not merely words, but also
appellants' conduct, that intimidated the flight crew members.
We note that Hicks and Moore's repeated refusals to relinquish
17 As we set forth in the statement of the facts in supra Part I, Appellants Hicks and Moore each engaged in extreme and repeated angry profanity and vulgarity. Appellant Canty has not challenged the sufficiency of the evidence supporting his conviction.
25 the boombox after being requested to do so, in combination with
their angry declarations that the "f---ing radio [is] going to
stay on," certainly would have intimidated a reasonable person.
We also observe that the very real threat that appellants would
play the radio component of the boombox, which could have caused
critical navigational equipment to malfunction, no doubt was
intimidating.
ii) Whether there was sufficient evidence of "interference"?
There is ample evidence in the record to support a rational
fact-finder's conclusion that appellants interfered with numerous
Continental flight crew members' duties. There was specific
testimony to this extent from Melissa Bott and Carol McWilliams.
There was also other evidence indicating that flight crew
members, including a member of the cockpit crew, were forced to
ignore their duties as a result of the appellants' intimidating
words and conduct.
We conclude that there was sufficient evidence to support
appellants' convictions under § 1472(j).
III.
For the foregoing reasons, we AFFIRM all three appellants'
convictions under 49 U.S.C. § 1472(j).