United States v. Gray

• Decision Date: 13 March 2015
• Docket Number: No. 13–1909.,13–1909.
• Citation: 780 F.3d 458
• Parties: UNITED STATES of America, Appellee, v. Nancy GRAY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

780 F.3d 458

UNITED STATES of America, Appellee

v.Nancy GRAY, Defendant, Appellant.

No. 13–1909.

United States Court of Appeals, First Circuit.

March 13, 2015.

Inga L. Parsons, for appellant.

Kelly Begg Lawrence, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before HOWARD, LIPEZ, and THOMPSON, Circuit Judges.

Opinion

THOMPSON, Circuit Judge.

Words are slippery things. Take “malice,” its legal definitions alone can encompass: the intent to commit a wrongful act, reckless disregard for the law, ill will, wickedness of heart, and the intent to kill. See Black's Law Dictionary 968–69 (7th ed.1999). But can malice's fifty shades of meaning include “improper motive?” Former flight attendant Nancy Gray, convicted of providing false information regarding a bomb threat on an airplane, seeks to convince us that she was denied a fundamentally fair trial when her jury was instructed that malice meant “evil purpose or improper motive.” Because we find that the district court's definition just won't fly, we vacate Gray's conviction and remand this case for a new trial.

I.BACKGROUND

A. Bomb on Board

By September of 2009, Nancy Gray had been an American Airlines flight attendant for over ten years. On September 30, she was scheduled to work Flight 1318 from Boston to Miami. That afternoon, Gray and the rest of the flight crew boarded and began their pre-flight safety checks as the cabin service crew cleaned the aircraft.

Cabin service crew member John Marino worked his way from the back of the plane to the front, cleaning first the rear lavatories, then the middle lav before finishing with the first class lav. This task included restocking the dispensers with paper towels, tissues, and toilet paper. To restock the paper towels, Marino had to unlatch and open a small door to access the storage area behind the towel dispenser. When he opened that door in the middle lav on Flight 1318, Marino did not see anything written on the inside of the door. While Marino was finishing up in the first class cabin, he saw a female flight attendant (Gray) enter the middle lav, and come out again.

Gray then hurried over to the lead flight attendant and told him that she had found a note in the middle lav. Together they went back to the lav, where the lead flight attendant saw, written on the inside of the storage compartment door, the words “Bomb on Board! BOS–MIA.” They then rushed to the cockpit to notify the captain. Pre-boarding had begun, and by the time they returned to the middle lav with the captain, it was occupied by a passenger. Once he could enter the lav, the captain saw the message and decided to stop boarding and notify the authorities.

The aircraft was evacuated and towed to a remote area of Logan Airport where, over a period of several hours, it was searched. No bomb was found.

B. The Confession

On December 15, 2009, Gray, whose job was suspended at the time, contacted FBI Special Agent Joseph DeVuono at his office at O'Hare International Airport to request an interview to “clear her name.” They arranged to meet at DeVuono's office on the morning of December 23. Gray arrived at around 9:30 a.m., carrying “a very large sized soft drink.” DeVuono offered her a cup of coffee, which she declined, but at her request, he bought her a chocolate bar. Gray met with DeVuono and Special Agent David Mertz for an hour and a half before taking a break. At the break, Gray—who had been sipping the soda and eating the candy bar during the interview—sought and received permission to test her blood sugar level.¹ Gray showed the agents that her blood sugar was 106, and indicated that it was a good number and that she felt fine.

Gray next met with Special Agent Jay Cherry, who interviewed her for approximately two hours.² DeVuono then rejoined Gray and conducted a final hour and a half interview, during which she wrote and signed the following confession:

After careful consideration and with deep regret and remorse I take blame for writing on the door on Sept 30, 2009 Boston to Miami. The codes BOS–MIA were already on the door. I did not have anything to do with any other threats made, ever to American Airlines. After I did it I realized what I had done. I have been under extreme, stressful personal things in my life. After the ground worker called me a “fucking bitch” I snapped for a moment. I care deeply about AA, crew & the passengers. I have loved my job & still do. I will never do it again. To clarify what I wrote “Bomb on board!” It was wrong. I'm truly sorry. I never want a 9–11 to happen again and I did it more to get the ground workers in trouble than cause what I did.

She left the FBI office at 3:45 p.m., and according to DeVuono, she did not appear impaired or disoriented. According to her then-husband, Scot Brewer, when Gray returned home around 5:30 p.m., “she was walking funny, talking in slurred speech” and asking to see her mother, who had died ten years earlier. Brewer gave her sweet tea and a PopTart and “she slowly started to come back around.”

C. The Trial

On August 5, 2010, a grand jury indicted Gray for giving false information regarding a bomb threat on an airplane in violation of 49 U.S.C. § 46507(1).³ Gray pled not guilty.⁴

During the four-day trial that ensued, the government introduced Gray's signed confession into evidence, and elicited testimony from the FBI Special Agents, American Airlines employees, and several crew members of Flight 1318 about the bomb hoax incident and subsequent investigation. Flight Attendant Stacy Hyde testified to a possible motive, saying that Gray was “very upset with” American Airlines's handling of a medical issue she'd had. On direct examination, Hyde recalled that, previous to the day of the flight, Gray had told her “that she was going to, ‘Get back at them.’ ” During cross-examination, Hyde was shown the statement she made to a state police officer immediately following the bomb hoax. At that time, she did not report that Gray said she'd “get back at” American Airlines. Rather, she quoted Gray as saying “They'll never be able to fire me, I'll have to quit.”

Gray's ex-husband, Dr. Brewer, testified that Gray seemed incoherent and disoriented when he spoke to her after she left her FBI interview.⁵ Gray did not take the stand.

D. The Jury Instructions

Both Gray and the government submitted proposed jury instructions. Because the statute she was accused of violating requires the government to prove that Gray wrote the threat “knowing the information to be false, willfully and maliciously or with reckless disregard for the safety of human life,” both parties offered instructions defining “maliciously.” 49 U.S.C. § 46507(1). Citing Sand's Modern Federal Jury Instructions—Criminal ¶ 13.04, Instruction 13–24, Gray suggested the definition: “[t]o act maliciously means to do something with an evil purpose or motive.” Citing United States v. Gullett, 75 F.3d 941, 947 (4th Cir.1996), the government offered “[t]o act maliciously means to ‘act[ ] intentionally or with willful disregard of the likelihood that damage or injury would result.’ ”

The district court conducted a charging conference, during which the government pointed out that this circuit has never defined malice in the context of § 46507. The government argued that absent any legislative history, the common-law definition the government had offered was the better standard. Nevertheless, the court determined that it would “sharpen” the instruction by including the definition of malice offered by the defense. The court then instructed the jury, saying:

And then we turn to the question of what we call “malice,” “willful or malicious conduct.” To act maliciously in this context means to do something with an evil purpose or motive. It means to do something that is knowingly wrong, and here suggestions have been made that Ms. Gray had some malice toward American Airlines. But the [g]overnment has to prove that and you have to evaluate it. (emphasis added).

At the conclusion of jury instruction, the court held a sidebar conference and the government objected to the definition of malice, arguing that the jury didn't need to find motive at all, that evil intent was sufficient. The court noted that “evil purpose or motive” was phrased in the disjunctive, and added “I understand the objection. I think I am going to leave it where it is.” However, after sidebar, the court again addressed malice, telling the jury “what ‘malice’ means is to act with an evil purpose or an improper motive, that is ‘or,’ and it is up to you to decide whether or not the circumstances under these conditions, if you find them, constitute either acting with an evil purpose or acting with an improper motive.” (emphasis added). Defense counsel asked for a sidebar and pointed out that “I think under [Sand's Modern Federal Jury Instruction] it's ‘evil purpose or evil motive.’ ‘Improper purpose [sic]’ I think lessens the burden.” The court replied “No, it doesn't,” and the jury was sent to deliberate.

An hour and twenty minutes later, the jury sent a note back with a question: “What are the 4 criteria ... to consider for a verdict (e.g. malice)?” The court noted to the attorneys that defense counsel was concerned about the use of the word “improper” and asked counsel “what, assuming that I am going to respond more specifically about ‘malice,’ do you want?” Defense counsel continued to argue for “evil purpose or motive.” The court offered its own definition and, after some discussion, defense counsel asked for a brief break to review the relevant cases.⁶ The court agreed, and suggested that, so the jury could keep working, it would send back just the four elements under the statute, and would wait to “see if they ask more about ‘maliciously.’ ” Both parties agreed. Twenty-five minutes later, the jury returned, not with a question, but with a verdict—guilty. Gray was sentenced to twenty-seven months in prison, with three years of...