U.S. v. Flores, 91-1679

• Decision Date: 01 June 1992
• Docket Number: No. 91-1679,91-1679
• Citation: 968 F.2d 1366
• Parties: UNITED STATES of America, Appellee, v. Joyce Lee FLORES, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1366

968 F.2d 1366

UNITED STATES of America, Appellee, v. Joyce Lee FLORES, Defendant, Appellant.

No. 91-1679.

United States Court of Appeals, First Circuit.

Heard June 1, 1992.

Decided June 30, 1992.

Juan E. Alvarez, Asst. Federal Public Defender, with whom Benicio Sanchez Rivera, Federal Public Defender, San Juan, P.R., was on brief, for appellant.

Jose A. Quiles, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., and Epifanio Morales Cruz, Asst. U.S. Atty., Caguas, P.R., were on brief, for the U.S.

Before SELYA, Circuit Judge, LAY, ^* Senior Circuit Judge, and O'SCANNLAIN, ^** Circuit Judge.

SELYA, Circuit Judge.

A federal jury found defendant-appellant Joyce Lee Flores guilty on a charge of assaulting a flight attendant and interfering with the performance of the attendant's duties in violation of 49 U.S.C. § 1472(j) (1988). Flores assigns error to the trial court's refusal to instruct the jury on the lesser included offense of simple assault aboard an aircraft, 49 U.S.C. § 1472(k)(1) (1988). We sustain her appeal. ¹

I

A defendant is entitled to a jury instruction on her theory of the case so long as the theory itself is a cognizable one and the evidence of record, taken in the light most congenial to the theory, can plausibly support it. See United States v. McGill, 953 F.2d 10, 12 (1st Cir.1992); United States v. Rodriguez, 858 F.2d 809, 812 (1st Cir.1988). Because such an evaluation eschews differential factfinding, entailing no more than an inquiry into the legal sufficiency of the proof in respect to the suggested theory, appellate review is plenary. See Rodriguez, 858 F.2d at 812; see also Stevenson v. United States, 162 U.S. 313, 316-23, 16 S.Ct. 839, 840-43, 40 L.Ed. 980 (1896) (applying plenary standard of review sub silentio in connection with trial court's action on proposed lesser-included-offense instruction); United States v. Ferreira, 625 F.2d 1030, 1031-33 (1st Cir.1980) (similar). Hence, in evaluating the merits of an appeal from the rejection of a lesser-included-offense (LIO) instruction, it makes good sense for us, to the extent that there is record-rooted support for the defendant's version of the evidence, to recount the facts in the manner most compatible therewith (noting in general terms, however, for the sake of completeness, the government's version of the decisive incident).

II

On December 23, 1990, appellant was en route from New York to Puerto Rico aboard a regularly scheduled American Airlines flight. Tina Quarnstrom was a flight attendant on the airplane. Her principal duties were to provide food service, retrieve trash, supply passengers with amenities such as blankets and magazines, perform safety functions in emergencies, and in her words, simply to be "nice."

The relationship between Flores and Quarnstrom was turbulent from the start. Even before takeoff, Flores questioned Quarnstrom about when the airplane would depart. She demanded to know when lunch would be served. Later, she asked the attendant for a blanket. On that occasion, Quarnstrom responded that all the blankets were taken, admonished Flores for not asking sooner, and walked away. Subsequently, Flores approached two other flight attendants and pressed them for a blanket. When her importuning fell on deaf ears, Flores angrily repeated it. She then returned empty-handed to her seat. Several minutes later, a flight attendant other than Quarnstrom brought her a blanket.

Eventually, Flores headed to the lavatory. Upon encountering Quarnstrom, Flores asked Quarnstrom why she was being so rude. Quarnstrom ignored her and walked away. According to Flores, she reached out and touched the flight attendant's arm. Quarnstrom swung around and threatened Flores with arrest if Flores struck her. Flores then returned to her seat, where she remained until the flight landed and she was placed under arrest.

The prosecution's version of the touching is much different. According to prosecution witnesses, Flores grabbed Quarnstrom by the arms (perhaps using her fingernails to draw a small amount of blood), picked her up, shook her, poked a finger into her chest several times, and told her that Flores' friends would "skin all the skin off your body." Quarnstrom testified that her watch was damaged, that she broke into tears, and that she repaired to the restroom for several minutes to regain her composure.

Whatever the truth may be concerning the incident itself, it is undisputed that the flight proceeded without further incident; the airline's schedule was not interrupted; in-flight service was not restricted or delayed; and Quarnstrom performed her assigned tasks with her customary proficiency.

Before trial began, defense counsel submitted suggested jury instructions. One such instruction proposed that the jury be given an option of finding Flores guilty of simple assault as a lesser included offense of count 1. The district judge denied the request. After the judge delivered his charge, but before the jury retired to deliberate, defense counsel again asked the court to give an LIO instruction. The court again declined to do so. A guilty verdict followed.

III

At the outset, we dispose of a threshold matter. The government invites us to review the denial of the LIO instruction only for plain error on the ground that appellant failed to mouth the word "objection" in her timely critique of the court's charge. Because the government's approach confuses pragmatic literalism with stony formalism, we decline the invitation.

While a party seeking to object to jury instructions must do so "before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection," Fed.R.Crim.P. 30, and while we insist upon "strict adherence to the literal requirements of Criminal Rule 30," United States v. Arias-Santana, 964 F.2d 1262, 1268 (1st Cir.1992), the word "objection" does not have talismanic significance. In this case, appellant put the trial court on particularized notice at the appropriate time, i.e., after the charge was delivered but before the jury retired to consider its verdict, about what was wrong with the charge and what should be done to correct it. No more was exigible. See, e.g., United States v. Kaplan, 832 F.2d 676, 682 (1st Cir.1987) (objection to charge was sufficient; although counsel did not "repeat the magic word 'objection' [he] did what Rule 30 required of him, i.e., put the trial judge on notice so that a possible error could be corrected before the deliberation process began") (emphasis in original), cert. denied, 485 U.S. 907, 108 S.Ct. 1080, 99 L.Ed.2d 239 (1988); United States v. Coady, 809 F.2d 119, 123 (1st Cir.1987) (an objection to a jury instruction is sufficient so long as it is registered "at a time and in a (sufficiently particularized) manner that enables the trial judge intelligently to appraise the soundness of the position asserted, and if need be, correct the charge to avoid injustice").

IV

The Criminal Rules specifically provide that a "defendant may be found guilty of an offense necessarily included in the offense charged." Fed.R.Crim.P. 31(c). This device does not so much protect the government as it protects a defendant from an improper conviction in situations where a jury, although dubious about whether the prosecution has proved an indispensable element of the crime charged in the indictment, nevertheless considers the defendant to be guilty of some crime--and is, therefore, reluctant to acquit. See Schmuck v. United States, 489 U.S. 705, 717 n. 9, 109 S.Ct. 1443, 1451 n. 9, 103 L.Ed.2d 734 (1989); Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973). Under Rule 31(c), a reviewing court should use an "elements test" to determine when a LIO instruction is appropriate in a given case. See Schmuck, 489 U.S. at 716, 109 S.Ct. at 1450; United States v. Mena, 933 F.2d 19, 29 (1st Cir.1991). To pass the test, all the elements of the lesser included offense must be elements of the charged offense--but the charged offense must include at least one additional element.

Here, appellant's claim that she was entitled to an LIO instruction implicates the statutory provisions set forth in the margin. ² Her remonstrance is straightforward. She says that the offense of conviction has four elements: (1) assaultive conduct (2) occurring aboard an aircraft (3) within the jurisdiction of the United States (4) which interferes with a flight attendant in the performance of her duties. ³ See 49 U.S.C. § 1472(j). Building on this theme, she asseverates (a) that the jury, if properly instructed, could have found her guilty of simple assault, see 49 U.S.C. § 1472(k)(1); and (b) that simple assault is a lesser included offense of the offense of conviction because simple assault requires proof of only three elements--identical to the first three elements under section 1472(j)--without requiring proof of the fourth element, interference with the target's duties.

V

The government's first argument in opposition to the appropriateness of an LIO instruction is that section 1472(k)(1) applies only to assaults on passengers and for that reason cannot be a lesser included offense within the compass of section 1472(j).

As support for this proposition, the government, for the most part, cuts and pastes snippets from the legislative history of the 1961 amendments to the Federal Aviation Act of 1958. It points out that Congress intended section 1472(j) to protect aircraft personnel from actions which might impair the accomplishment of their duties. See H.R.Rep. No. 958, 87th Cong., 1st Sess. (1961), reprinted in 1961 U.S.C.C.A.N. 2563, 2566, 2570. But, this is mere lollygagging; it does not allow us to conclude either that section 1472(j) covers every assault on aircraft personnel or that section 1472(k)(1) covers assaults on passengers only.

Moreover, the prosecution's...