U.S. v. Blair

• Decision Date: 06 June 1989
• Docket Number: 89-1438,Nos. 88-1796,s. 88-1796
• Citation: 886 F.2d 477
• Parties: UNITED STATES of America, Appellee, v. Mark BLAIR, Defendant, Appellant (Two Cases). . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 477

886 F.2d 477

UNITED STATES of America, Appellee, v. Mark BLAIR, Defendant, Appellant (Two Cases).

Nos. 88-1796, 89-1438.

United States Court of Appeals, First Circuit.

Heard June 6, 1989.

Decided Sept. 29, 1989.

Joseph A. Dickinson, Concord, with whom Paul Twomey and Twomey & Sisti Law Offices, Chichester, were on briefs, for defendant, appellant.

Peter E. Papps, Acting U.S. Atty., was on brief, for U.S.

Before BREYER, REINHARDT, ^* and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

Appellant was found guilty by a jury of broadcasting false radio distress signals to a naval aircraft in violation of 18 U.S.C. Sec. 1001 (knowingly making false statements). He appeals claiming two errors: (1) that the evidence was insufficient to sustain the conviction, and (2) that the government withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the conviction.

I. Sufficiency of the evidence

The standard of appellate review on the sufficiency of evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); see United States v. Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 478, 83 L.Ed.2d 461 (1984); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 318, 104 S.Ct. 1805, 1818, 80 L.Ed.2d 311 (1983). "[T]he evidence need not preclude every reasonable hypothesis inconsistent with guilt; and ... the jury is free to choose among varying interpretations of the evidence, as long as the interpretation they choose is reasonable." United States v. Guerrero-Guerrero, 776 F.2d 1071, 1075 (1st Cir.1985). Of course, the government is also entitled to the benefit of all reasonable inferences that may arise from the state of the evidence. Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964).

The essential elements which must be proven beyond a reasonable doubt to establish a violation of 18 U.S.C. Sec. 1001 are: (1) that a statement was made, (2) with specific intent, (3) to falsify, (4) a matter material, (5) to agency jurisdiction. United States v. Lange, 528 F.2d 1280, 1287 (5th Cir.1976); see also United States v. Race, 632 F.2d 1114 (4th Cir.1980). See generally United States v. Corsino, 812 F.2d 26 (1st Cir.1987).

Viewing the record in this case pursuant to the standards to which we are bound, there is no question but that the essential elements have been proven beyond a reasonable doubt and that the conviction must be sustained. The evidence presented supporting this conclusion is as follows.

On January 8, 1988, a United States Navy aircraft flying in the vicinity of New Hampshire on a flight from Florida to Maine, received a call from the Federal Aviation Administration center in Boston to assist in the search of an airplane believed to have crashed near Laconia, New Hampshire that evening. The naval aircraft proceeded to fly towards Laconia, at which point it made radio contact with a person who identified himself as the pilot of the presumed downed aircraft.

The "downed" pilot indicated that in addition to himself there were also with him his co-pilot and two passengers who appeared not to be moving. He claimed to have lost a lot of blood and to being very cold, and stated he did not know how much longer he could take it.

In near blizzard conditions the naval pilot proceeded to fly various flight patterns and directional vectors designed to locate the transmission source and thus the "downed" aircraft. Despite those efforts, the best estimate made by the naval pilot was that the emission signals were from a "position ... very close to the Laconia area, a little bit probably to the northwest of the airport." Because of fuel shortage the air search had to be discontinued late in the evening, without the "downed" aircraft having been located. No such aircraft was ever found because the entire incident was a hoax.

While the above aerial search was taking place, another aspect of this drama was unfolding on the ground. Timothy Dinan was returning by foot to his apartment building in Laconia when he heard what appeared to be a radio transmission. As he neared the building, he saw an open window on the third floor of a darkened apartment and listened to what sounded like a conversation between pilots. He then heard an aircraft fly overhead and then a voice coming from the darkened apartment say, "I'm losing a lot of blood; I'm not sure I can stay awake very much longer."

Dinan, accompanied by several building maintenance employees went to the door of the apartment from which the voices were heard. Although they pounded on the door, no one answered. Upon going outside again Dinan noticed that the window had been closed, but that the lights of the apartment were still off.

Soon thereafter an ambulance arrived on the scene and its occupants together with Dinan and the building employees returned to the apartment in question, which was opened by the building superintendent with a master key. At this point the apartment's lights went on and defendant appeared, inquiring as to what was going on. Upon being told that it was believed that someone was injured in the apartment, he held up his arm as if to show no injuries. Dinan recognized his voice as being the same voice that he had previously heard as saying that he was losing blood.

The following day, Dinan read a newspaper account regarding a supposed crash hoax. He contacted the Laconia police and after a preliminary investigation, a search warrant was obtained for defendant's apartment. Various items of radio equipment were found and seized. Upon being interviewed by the police, defendant asked, "How much trouble am I in for doing this?" The police officer conducting the interview, who had heard the radio broadcasts of the "downed" pilot, identified defendant's voice as the same voice as that of the "downed" pilot.

"For us to sustain the jury's determinations, ...