U.S. v. Brown, 74-1418

• Decision Date: 12 December 1974
• Docket Number: No. 74-1418,74-1418
• Parties: UNITED STATES of America, Appellee, v. Nathaniel BROWN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 427

508 F.2d 427

UNITED STATES of America, Appellee, v. Nathaniel BROWN, Appellant.

No. 74-1418.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 11, 1974.

Decided Dec. 12, 1974.

Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellant.

Anthony P. Nugent, Jr., Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before MATTHES, Senior Circuit Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge. ^*

BRIGHT, Circuit Judge.

Nathaniel Brown, a traveler enroute from Kansas City, Missouri, to Philadelphia, Pennsylvania, commenced preflight boarding procedures conducted by Trans World Airlines for passengers intending to board Flight No. 270 at Kansas City, Missouri, on August 13, 1972. Brown presented his flight bag to an employee of TWA for a routine search. The search of the flight bag disclosed a loaded Vanguard tear gas pistol and eight shells (five tear gas and three blank) among numerous items of personal belongings. Brown was arrested and charged with attempting to board an aircraft having 'on or about his person a concealed deadly or dangerous weapon * * *' in violation of 49 U.S.C. 1472(l). ¹ In a court trial the United States Magistrate for the Western District of Missouri found Brown guilty and sentenced him to five years probation. On appeal, the district court affirmed the conviction, United States v. Brown, 376 F.Supp. 451 (W.D.Mo.1974), and Brown brought this appeal.

Prior to the oral arguments in this case, this court learned that in a recent similar prosecution under 1472(l) the Solicitor General of the United States had recommended to the Supreme Court that it vacate the defendant's conviction and remand the case to allow the Government to move for dismissal. The Supreme Court accepted this recommendation. Margraf v. United States, 414 U.S. 1106, 94 S.Ct. 833, 38 L.Ed.2d 734 (1973), vacating and remanding 483 F.2d 708 (3d Cir. 1973). The Third Circuit subsequently remanded the case to the district court for dismissal. United States v. Margraf, 493 F.2d 1206 (3d Cir. 1974).

We believed that the circumstances disclosed in the instant case were sufficiently similar to the facts in Margraf to justify a similar disposition. See discussion, part II, infra. Consequently, at oral argument, we queried whether the Government might wish to move for dismissal in the instant case, and at our suggestion, Government counsel contacted the Department of Justice for instructions. The Justice Department has declined to seek dismissal. Accordingly, we turn to an examination of the merits.

I.

This case was tried on the testimony of defendant-Brown and on a stipulation of facts between the parties. The defendant testified:

I * * * purchase(d) a tear gas gun some years back for the purpose of scaring dogs away. In Philadelphia we have numerous vicious dogs that are allowed to run loose in the city streets, and I have been chased by a dog before, and I bought it to-- the tear-- I bought the tear gas gun to scare away dogs. And I usually kept it in a-- in a d-- blue travel bag that I had with me.

Although Brown was aware that federal law prohibited anyone from carrying a dangerous and deadly weapon aboard an airplane, he was not fully aware that the tear gas pistol was in his carry-on bag when he presented it to airline personnel for inspection.

The parties by stipulation agreed to the following facts:

1. On August 3, 1972, shortly before 5:00 p.m., defendant Nathaniel Brown presented himself at Gate 7-8 for the purpose of boarding Trans World Airlines Flight 270 for a flight from Kansas City, Missouri, to Philadelphia, Pennsylvania. At that time he was screened by the magnetometer for firearms on his person. At the same time a separate and routine search of his flight bag was made by an employee of Trans World Airlines, in the course of which a loaded Vanguard tear gas pistol and eight shells (five tear gas and three blank) were found beneath numerous items of personal belongings.

2. This search of defendant's flight bag was routine in that a search of the carry-on luggage for all passengers boarding Flight 270 was then being conducted, and the defendant was not the first to be searched.

3. Prior to the search defendant had presented his ticket to the TWA agent and had been furnished with a boarding pass for Flight 270.

4. Defendant at no time hereinmentioned aroused the suspicion of the TWA employees or the U.S. Marshals. Defendant was not stopped and searched because he fit the so-called 'profile'. Defendant made no attempt to hide, to use or to reach for the tear gas gun in his flight bag.

5. The tear gas pistol in question is incapable of firing any kind of solid projectile and it is only capable of firing a dose of tear gas in gaseous form, or a blank cartridge. The tear gas gun is incapable of accepting into its chamber a bullet of any calibre and is not amenable to modification to accept such ammunition in that the cylinder is so constructed as to block the insertion of regular ammunition. Moreover, the barrel of the tear gas gun in its present form contains a metal piece which is apparently the bottom part of the sight at the top of the barrel. Finally, the tear gas gun is constructed of such light metal as to be dangerous to the person who might attempt to fire regular ammunition through the barrel if the cylinder could be modified.

6. The defendant's character is good. He is the assistant pastor of St. Mark's Christian Methodist Episcopal Church, 1520 N. Marshall St., Philadelphia, Pennsylvania, and pastor of the St. James Station Circuit Mission of the Philadelphia District of the New York-Washington Annual Conference of the Christian Methodist Episcopal Church.

At the close of the evidence Brown moved for a judgment of acquittal asserting that the tear gas pistol was not a per se 'deadly or dangerous weapon' and that the failure of the Government to introduce any evidence that appellant intended to use the pistol in a dangerous manner precluded, as a matter of law, a finding that the pistol was 'deadly or dangerous' within the meaning of 1472(l). In affirming the magistrate's rejection of this contention, District Judge Becker concluded that

under the facts presented in the case at bar and considering both the per se (inherent) and use capacities of the weapon in question, the .22 caliber Vanguard tear gas gun loaded with one or more tear gas cartridges was a 'dangerous' weapon within the meaning of Section 1472(l) * * *. (376 F.Supp. at 459.)

We agree with this conclusion for the reasons set forth in the district court's extensive opinion.

Although this agreement with the district court would ordinarily require an affirmance, under the circumstances of this case we deem it necessary to consider whether we should examine sua sponte an issue not raised before the magistrate, the district court, or this court. That issue is whether the tear gas pistol was actually 'concealed' as required by 1472(l). Under limited circumstances, Fed.R.Crim.P. 52(b) authorizes federal appellate courts to examine a critical issue not raised on appeal. That rule reads:

Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. (Fed.R.Crim.P. 52(b).)

As the Supreme Court has observed, this power may be invoked on appeal, sua sponte:

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings. (United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936).)

See Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); Brotherhood of Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 91 L.Ed. 973 (1947). See generally 3 C. Wright, Federal Practice and Procedure 856 (1969).

This power to review issues not raised by the parties must be exercised only with great caution and its use is restricted 'to avoid a miscarriage of justice.' Johnson v. United States, 362 F.2d 43, 46 (8th Cir. 1966). See United States v. Atkinson, supra; United States v. Scott, 485 F.2d 576 (8th Cir. 1973), cert. denied, 416 U.S. 941, 94 S.Ct. 1946, 40 L.Ed.2d 292 (1974); United States v. Reed, 446 F.2d 1226, 1230 (8th Cir. 1971); United States v. Robinson, 419 F.2d 1109, 1111-1112 (8th Cir. 1969).

In determining whether to apply the plain error rule, we must consider whether an injustice has been done to defendant-Brown. Additionally, we must consider the effect of the application of the precedent established by the district court upon the millions of persons in this country who yearly travel in commercial aircraft. ²

The district court opinion notes

that for purposes of Section 1472(l), a deadly or dangerous weapon is measured by the possible or probable use of the weapon to cause death or serious bodily injury * * *. (376 F.Supp. at 458.)

Such a rule of law in the context of the district court opinion carries the implication that an airline passenger violates federal law when carrying any object under cover, such as within a handbag or flight bag, which could potentially be used as a weapon even though that object is readily discoverable on the routine inspection now carried out at all commercial airports. Obviously, such a rule of law carries far-reaching consequences for the unwary and uninformed person who may travel by air. Indeed, the following individuals have already been prosecuted under this statute:

1) a musician-passenger carrying in his pocket a pocketknife used as a 'tool,' United States v. Margraf, 483 F.2d 708, 709 (3d Cir. 1973); 2) a passenger carrying in his jacket pocket a starter pistol, United States v. Dishman, 486 F.2d 727, 729 (9th Cir. 1973) (the appellate court rev...