980 F.2d 963 (5th Cir. 1992), 91-6272, United States v. Hicks

Docket Nº:91-6272.
Citation:980 F.2d 963
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jimmy HICKS, Jerry Canty, and Latonya Moore, Defendants-Appellants.
Case Date:December 23, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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980 F.2d 963 (5th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Jimmy HICKS, Jerry Canty, and Latonya Moore, Defendants-Appellants.

No. 91-6272.

United States Court of Appeals, Fifth Circuit

December 23, 1992

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[Copyrighted Material Omitted]

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R. Christopher Goldsmith, Houston, Tex., for Canty.

Dick DeGuerin, DeGuerin & Dickson, Houston, Tex., for Hicks and Moore.

D.R. Millard, III, James L. Turner, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, Tex., for U.S.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, JOHNSON and DUHE, 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.App. § 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.

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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 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 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 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

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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 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. 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...

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