U.S. v. Flum

• Decision Date: 20 June 1975
• Docket Number: No. 74-1288,74-1288
• Citation: 518 F.2d 39
• Parties: UNITED STATES of America, Appellee, v. Thomas Lawrence FLUM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 39

518 F.2d 39

UNITED STATES of America, Appellee, v. Thomas Lawrence FLUM, Appellant.

No. 74-1288.

United States Court of Appeals Eighth Circuit.

Submitted April 18, 1975.

Decided June 20, 1975.

Douglas McArthur, Lincoln, Neb., for appellant.

Daniel E. Wherry, Lincoln, Neb., for appellee.

Before GIBSON, Chief Judge, and HEANEY, BRIGHT, ROSS, STEPHENSON, WEBSTER and HENLEY, Circuit Judges, En Banc. ^*

WEBSTER, Circuit Judge.

Thomas Lawrence Flum was convicted in a jury-waived trial of attempting to board an aircraft while having about his person a concealed dangerous and deadly weapon, in violation of the Federal Aviation Act of 1958, as amended, 49 U.S.C. § 1472(l ). ¹ In this appeal Flum contends that he was convicted upon insufficient evidence since there was no evidence tending to establish that he intended to conceal the knives which were discovered during a preboarding search of his carry-on luggage and personal belongings. The government, while arguing in the alternative that there was sufficient evidence of intent to conceal, first contends that the statute does not require proof of such intent. The District Court ² so held and we agree.

The objective facts of the case are well established by the evidence. On July 20, 1973, defendant Flum, accompanied by some friends, arrived at the Lincoln Municipal Airport at approximately 5:20 p.m. He first went to the ticket counter and purchased a ticket. The agent instructed him to proceed immediately to the gate where the passengers on his flight were already boarding. The defendant proceeded to a security post through which passengers must pass before reaching the departure gate. During the security inspection which followed, guards discovered a switchblade knife with a 33/4 inch blade and a butcher knife with a 77/8 inch blade. The butcher knife was found in a suitcase, wrapped in loose clothing. The switchblade knife was found inside a small gray box which was on the counter with other belongings. ³

The essential elements of the relevant offense prohibited by 49 U.S.C. § 1472(l ) are (1) attempting to board an aircraft (2) while carrying a deadly or dangerous weapon (3) which was concealed on or about the defendant's person. Flum was clearly attempting to board an aircraft, and the deadly and dangerous character of the knives is likewise not disputed. ⁴ What is disputed is whether the evidence showed beyond reasonable doubt that the weapons were "concealed" within the meaning of the statute.

Specific Intent

The defendant contends that the statute takes as its source the common law crime of carrying a concealed weapon and therefore requires the same proof of mens rea, that is, a specific intent to conceal. Flum testified that he had intended to check his bags in advance of boarding but lacked time to do so because he had arrived at the airport only five minutes prior to take-off time. Since no one inquired whether he had any weapons in his possession, he argues, his act of presenting his belongings for inspection negated any intent to conceal. If intent to conceal were an essential element of the offense, this would be a compelling argument. ⁵

In Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the defendant had been convicted of converting government bomb casings which he had found on a government target range while deer hunting. The district court had refused to instruct on the issue of intent, holding no intent to be required by the statute, and the Sixth Circuit had affirmed. On certiorari the Supreme Court reversed, holding that the statute, 18 U.S.C. § 641, made the offense a felony if the value of the property exceeded $100, that conviction would gravely besmirch the defendant as a thief, and that the offense was taken over from the common law, which required proof of intent. However, in distinguishing that case from cases based upon regulatory or "public welfare offenses," which do not require proof of intent, Justice Jackson explained the basis for the latter as follows:

These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion than it might reasonably exact from one who assumed his responsibilities.

342 U.S. at 255-56, 72 S.Ct. at 246.

The provision of the statute ⁶ applicable to the instant case makes no reference to intent. In order then to determine whether the requirement of specific intent is nonetheless implied from the nature of the statute, we turn again to the classic test which Judge (now Justice) Blackmun announced for our court in Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960):

From these cases emerges the proposition that where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting, the statute can be construed as one not requiring criminal intent. The elimination of this element is then not violative of the due process clause. Shevlin-Carpenter Co. v. State of Minnesota, 218 U.S. 57, 69-70, 30 S.Ct. 663, 54 L.Ed. 930; United States v. Balint (258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604) supra, page 252 of 258 U.S., at page 302 of 42 S.Ct.; Williams v. State of North Carolina, 325 U.S. 226, 238, 65 S.Ct. 1092, 89 L.Ed. 1577.

1. Policy. In 1961 Congress adopted certain amendments to the Federal Aviation Act of 1958, for the purpose of "extend(ing) Federal criminal laws to certain acts committed on board aircraft in particular, such acts as aircraft 'hijacking', murder, manslaughter, assault, maiming, carrying concealed deadly or dangerous weapons, and stealing personal property." H.R. Report No. 958, 87th Cong., 1st Sess. (1961), 1961 U.S.Code Cong. & Admin.News, p. 2563. The report continues:

A series of acts of a criminal nature recently committed aboard aircraft has dramatically underscored the gaps in existing law which can operate to provide criminals with a haven from prosecution.

* * * The committee feels that it is necessary and appropriate for the legislation to have this broad coverage if it is to operate as an effective deterrent to crime and promote safety in air commerce. While the legislation is intended to be as broad in its coverage geographic and otherwise, as its plain meaning indicates, it is not intended and, of course, it cannot extend beyond such limitations as may be imposed by the Constitution. * * *

Broad, stringent legislation such as is proposed here cannot, of course, prevent piracy of aircraft, but it is to be hoped that the enactment of laws providing stiff penalties for various crimes in air commerce will deter all except the hopelessly unbalanced from risking life and liberty in such undertakings.

1961 U.S.Code Cong. & Admin.News at pp. 2563-64.

Further in its report, the Committee on Interstate and Foreign Commerce explained the objective and application of subsection (l ), now 49 U.S.C. § 1472(l ):

Subsection (l ) would make it unlawful, with certain exceptions stated below, for any person * * * to attempt to board any * * * aircraft while having on or about his person a concealed deadly or dangerous weapon.

1961 U.S.Code Cong. & Admin.News at p. 2574.

The exceptions mentioned deal with possession of weapons by law enforcement officers or other authorized persons. Nowhere in the report is found any inference of a congressional purpose or policy that intent to conceal must be demonstrated in order to prove the fact of concealment. Instead, a clear legislative intent is expressed that the reach of the legislation be "as broad in its coverage * * * as its plain meaning indicates," subject only to constitutional limitations, none of which are in question here.

2. Standard. We cannot say that the standard expressed in the plain meaning of subsection (l ) is unreasonable. A demonstrated need to halt the flow of weapons on board aircraft, which had exposed to peril large numbers of passengers and jeopardized the integrity of commercial travel, justified a stringent rule, adherence to which was properly expected of all persons traveling by air, for their mutual safety.

3. Penalty. The statutory penalty, a maximum fine of $1000 or imprisonment for not more than one year, or both, makes the offense a misdemeanor, see 18 U.S.C. § 1, and is thus "relatively small." Moreover, other amendments to the Act which were adopted at the same time as subsection (l ) both require evidence of wilfulness and provide for more stringent penalties, ⁷ adding weight to the inference that the penalty here was...