Mims v. United States

• Decision Date: 09 June 1964
• Docket Number: No. 7401.,7401.
• Citation: 332 F.2d 944
• Parties: Robert MIMS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

332 F.2d 944 (1964)

Robert MIMS, Appellant, v. UNITED STATES of America, Appellee.

No. 7401.

United States Court of Appeals Tenth Circuit.

June 9, 1964.

Sam W. Moore and Raymond Burger, Oklahoma City, Okl., for appellant.

Jack R. Parr, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on brief), for appellee.

Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

MURRAH, Chief Judge.

This is an appeal from a judgment and sentence after conviction on an indictment charging that "while aboard an aircraft in flight in air commerce, to-wit: a 1960 Mooney Mark 20A four passenger single engine airplane * * * Robert Mims did assault, intimidate and threaten Royden Dudley Schooley, a flight crew member who was the pilot of said airplane, while said pilot was in fact in actual control of said airplane in the air above the ground, so as to interfere with the performance by said pilot of his duties in controlling said airplane * * * in violation of Title 49, U.S. C.A. 1472(j)." The 1961 Amendment to the Federal Aviation Act provides that "whoever, while aboard an aircraft in flight in air commerce, assaults, intimidates, or threatens any flight crew member or flight attendant (including any steward or stewardess) of such aircraft * * *," shall be punished. 49 U.S.C. § 1472(j).

Appellant's first contention is to the effect that the statutory language in which the indictment is framed is too indefinite to include a private airplane. But, during the pendency of this appeal, this question was conclusively answered in United States v. Healy, 376 U.S. 75, 83, 84 S.Ct. 553, 11 L.Ed.2d 527, wherein the Supreme Court, in construing a companion section of the same statute (49 U.S.C. § 1472i), held that private aircraft are plainly included within the scope of "an aircraft in flight in air commerce." By the same parity of reasoning, the statutory phrase "flight crew member" clearly and unmistakeably includes the pilot of an aircraft in flight in air commerce.

Appellant also challenges the legal sufficiency of the indictment for failure to specify the acts constituting the alleged assault, threat, and intimidation. The traditional criteria by which the legal sufficiency of an indictment is determined is whether it contains the elements of the offense charged and apprises the accused of the nature of the charge, so as to enable him to prepare a defense and to plead the judgment in bar. See: United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; and Clay v. United States (10 CA), 326 F.2d 196. The essence of these high principles of due process is embodied in a simple rule, which provides that an indictment shall be "a plain, concise and definite written statement of the essential facts constituting the offense charged." F.R.Crim. P., Rule 7(c).

An indictment which is cast in the language of the statute is legally sufficient if, and only if, it states with requisite clarity the essential facts of the offense charged. See: Meer v. United States (10 CA), 235 F.2d 65; Cefalu v. United States (10 CA), 234 F.2d 522; and Madsen v. United States (10 CA), 165 F.2d 507. Generally, when the statute uses generic terms to define the offense, the indictment or information based thereon must descend to particularize the species of the generic terminology. See: Russell v. United States, ibid.; and United States v. Seeger (2 CA) 303 F.2d 478. The statutory words, "assault, threat and intimidation" are, to be sure, generic terms in the criminal law. There are many species or classes of assault, threat and intimidation known to the criminal law, and an indictment or a statute which attempts to condemn or charge a violation of one of the species must allege the essential facts of the species charged. But, the species of assault, threat or intimidation is not an essential element of the offense charged here, and we do not think it requisite to the validity of this indictment that the Government specify the particular overt acts employed to consummate the offense. Our case is not like Russell v. United States, supra, where the indictment under 2 U.S.C. § 192 was fatally defective for failure to allege the subject matter of the congressional inquiry, as to which the question propounded was pertinent, or United States v. Seeger, supra, wherein the authority to inquire was deemed a material element of the offense. In each of these cases, the indictments failed to allege the essential facts of a basic element of the offense. It may be that the accused is entitled to a specification of the manner or means by which the assault, threat and intimidation were inflicted on the pilot of the plane, but the Government is not required to plead the factual details of the offense in the indictment. If such details are deemed necessary, in the discretion of the trial Court, to enable the accused to properly prepare his defense, they may be supplied by a bill of particulars under F.R.Crim.P., Rule 7(f).

At the pre-trial proceedings, appellant moved for a bill of particulars to spell out (a) in what manner he assaulted, intimidated and threatened the pilot; (b) how the assault, intimidation or threats interfered with the pilot's control of the airplane; and (c) by whose direction the plane landed at Stillwater. See: F.R.Crim.P., Rule 7(f). The trial Court denied the bill, saying that the indictment was "sufficiently clear," and that appellant's attorney could "find out without much trouble from his client * * * what he did * * *." Ordinarily, the accused does have knowledge of what he did, but he may be entitled to know and be informed of the overt acts on which the Government relies. This is especially true in our case, in view of appellant's claim to the Court at pre-trial that by reason of his drunken condition, he was unable to recall what transpired.

The record indicates, however, that when the motion was made, appellant was in possession of an affidavit of the pilot and complaining witness, in which he had stated that at the time of the events alleged in the indictment, the accused was riding in the right seat of the plane with a set of dual controls and pedals at his position; and, that while the pilot was attempting to land at Stillwater, Oklahoma and was about fifteen feet off the runway, the accused without warning assumed control of the plane by using the controls and by so doing, started to climb, saying "We're not going to land here." At this point, another passenger in the plane overpowered the accused, to permit the pilot to regain and maintain control of the plane by counteracting any action the accused had upon the controls. When the plane had reached an altitude of about 400 feet, the accused turned the ignition key off, removed it and put it in his pocket. The pilot stated that appellant did not touch him, threaten him, made no menacing gesture or attempt to force him to do anything; and, that his actions were those of one who was "crazy drunk" and did not know what he was doing. On the basis of this affidavit, the accused moved to dismiss the indictment on the ground that the complaining witness' testimony to the grand jury was factually insufficient to support the true bill. In that respect, the trial Court was invited to examine in camera the minutes of the grand jury, in order to ascertain the sufficiency of the testimony. In these circumstances, we think the accused was as well informed of the essential facts of the case against him as the Government. In any event, he cannot say as a practical matter, that he was not sufficiently advised of the nature of the charge or unable to prepare to meet it. While the trial Court may have given the wrong reason for its denial of the bill of particulars, we think it was correctly denied.

Appellant attacks the sufficiency of the evidence to support the verdict. On trial of the case, the pilot as the complaining witness testified to substantially the same facts set forth in his affidavit with the additional facts that while aloft, the accused argued with the pilot concerning the proper compass heading for their destination and attempted to assume control of the plane by manipulating the dual controls. The pilot further testified that while in flight, the accused opened the door of the airplane, causing him to decide upon an immediate landing in Stillwater, Oklahoma instead of proceeding to their destination; that in order to subdue the accused and enable him to land, a third passenger in the plane hit the accused over the head with a bottle; and, that the removal of the ignition key by the accused forced him to make a "dead stick landing."

Two F.B.I. Agents...