U.S. v. Irving, 74--1722

• Decision Date: 20 March 1975
• Docket Number: No. 74--1722,74--1722
• Citation: 509 F.2d 1325
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Spencer IRVING, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1325

509 F.2d 1325

UNITED STATES of America, Plaintiff-Appellee, v. Spencer IRVING, Jr., Defendant-Appellant.

No. 74--1722.

United States Court of Appeals, Fifth Circuit.

March 20, 1975.

Rehearing and Rehearing En Banc

Denied June 11, 1975.

Joseph R. Bankoff, Atlanta, Ga. (Court-appointed), for defendant-appellant.

John W. Stokes, Jr., U.S. Atty., Sherman D. Johnson, Dorothy T. Beasley, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before DYER, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Appellant, Spencer Irving, Jr., was charged in a single count information with imparting false information concerning an alleged attempt to be made to commit air piracy, in violation of Title 49, U.S.C., Sec. 1472(m)(1). ¹ The district judge denied Irving's motion to dismiss for failure to state an offense against the United States, upheld the statute against constitutional attack, and following a bench trial found and adjudged Irving guilty as charged. The court imposed a twelve month confinement sentence, which was suspended, with twelve months' supervised probation. This appeal timely followed. We affirm.

Appellant's conviction rests upon his statement to an airline stewardess in the cockpit of a commercial airplane minutes before its takeoff on a regularly scheduled flight that he was studying to be a travel agent, and that when he had studied sufficiently and knew enough about airplanes, he was going to hijack one. ² Minutes earlier, he had made similar remarks to the Second Officer on board, who warned him never to repeat what he had said. He was removed from the plane and, under questioning by an FBI agent, protested that he had only been joking.

Irving challenges his conviction on three grounds: (1) his speech was without the scope of Sec. 1472(m)(1); if covered by the statute, (2) then the statute is overbroad, conflicting with the First Amendment guaranty of free speech; and (3) vague, in violation of the Fifth Amendment due process clause.

The first argument advanced is that appellant's language did not fall within the prohibition of Sec. 1472(m)(1) because it concerned an alleged attempt to be made in the indefinite future. The statute, Irving argues, applies only to false information concerning immediate attempts or ones which allegedly will occur at a definite point in time.

The critical language of the statute prohibits the conveying of false information, with knowledge of its falsity, 'concerning an attempt or alleged attempt . . . to be made' to commit air piracy. Appellant's speech, as his counsel conceded at oral argument, falls within the literal wording of the statute. In urging a construction limited to the conveying of false information concerning an immediate peril, however, he misconceives the scope of the problem which Congress addressed.

Beginning in the 1950's many anonymous phone calls threatening the destruction of airplanes were made to airline and airport officials in the United States, resulting in the grounding or delay of scheduled flights and panic in the public. See 1956 U.S. Code Congressional and Administrative News, pp. 3145--3146. In the 1960's the fad changed slightly and many of the phone calls conveyed threats of hijacking. See 1961 U.S.Code Congressional and Administrative News, p. 2563 at 2575--2576. Most of the warnings were false and were made by persons evincing a badly distorted sense of humor. Congress responded each time with a statute making such conduct criminal. See Title 18, U.S.C., Sec. 35, the bomb hoax statute; Title 49, U.S.C., Sec. 1472(m). ³ The hijack statute is modeled after the bomb hoax statute. See 1961 U.S. Code Congressional and Administrative News, p. 2563. Because both statutes address similar problems we look to the legislative history and case law interpreting each as a guide for disposition of the present appeal.

The legislative history makes clear that Congress was concerned with the prankster as well as with the individual acting out of malice, and has decreed that the conveyance of such false information is no joking matter. See 1956 U.S.Code Congressional and Administrative News, p. 3145; 1961 U.S.Code Congressional and Administrative News, p. 3052; 1965 U.S.Code Congressional and Administrative News, p. 1834. Our study of this legislative history indicates that the concern of Congress was not solely with preventing the actual destruction or hijacking of airplanes, but also with the disruption of air service and jeopardy to the safety of passengers and personnel which results when false information about potential bombs or hijacks is relayed. The Congress' power to legislate to prevent such disruption and jeopardy to safety is not open to serious doubt, but when speech is restricted the statute must be construed with the dictates of the First Amendment firmly in mind and measured against its commands. See Watts v. United States, 1969, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664, 667; Dennis v. United States, 1951, 341 U.S. 494, 501--503, 71 S.Ct. 857, 863--64, 95 L.Ed. 1137, 1148--49.

When we focus our attention on the evils Congress was trying to prevent--unnecessary interference with air commerce, with serious potential for disruption and jeopardy to the safety of the travelling public and crew personnel--we must reject the construction urged by the appellant. When an alleged attempt is supposedly going to occur is not a sufficiently accurate gauge of those evils. An indication of a future attempt may be equally or more disruptive as occasions when the particular flight number, day, time, and location is designated. Conveying false information of an attempt to be made relates, not to the immediacy of an attempt, but rather to whether an attempt is to occur at all. Again, it is not the immediacy of the threat of a hijack which must be looked to in determining whether a defendant has violated the statute, but the immediacy of the threat of disruption.

We therefore construe § 1472(m)(1) as prohibiting the conveying of false information, knowing it to be false of an attempt to be made where there is a real and immediate threat of disruption to present or future air service, with its attendant dangers for the safety of passengers and personnel, whether or not the speaker intends to disrupt, whether or not he knows disruption will result, and whether or not disruption actually does ensue.

Appellant's speech therefore falls within the scope of the statute, as construed. A cockpit of an airplane, minutes before take-off, is not an appropriate forum in which to announce one's intent someday to hijack an airplane. As the stewardess testified at trial, such statements as appellant made are always dealt with as serious matters because of the airline's responsibility for the safety of the many persons aboard. She could not let the statement pass without determining whether or not Irving presented a real threat. Disruption, in the form of delay for removal and questioning, followed as a matter of course.

Appellant nevertheless contends that the statute is overbroad because it prohibits the conveyance of all false information concerning an attempt to commit an unlawful act without regard to the time or place that such information is conveyed, to whom it is conveyed, or whether the false information in fact hinders or threatens to hinder air commerce.

Unlike the situation where a federal court confronts a state statute and is unable to impose a limiting construction which would save the statute from an attack on its constitutionality, see Gooding v. Wilson, 1972, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408, we confront a federal statute and are, accordingly, duty-bound to interpret it 'in a manner not inconsistent with the demands of the Constitution'. Dennis v. United States, 1951, 341 U.S. 494, 501--502, 71 S.Ct. 857, 863, 95 L.Ed. 1148. The limiting construction we have imposed obviates any overbreadth difficulties and is consistent with the results reached in prior cases. Time and place are important insofar as they affect the determination whether the false information presents a clear and present danger of interference with air commerce and safety. For example, in United States v. Silver, E.D.Pa.1961, 196 F.Supp. 677, the defendant told a ticket agent he had a bomb in his briefcase. Predictably, the agent alerted airport guards and the FBI. The plane was delayed twenty minutes. The Court took 'judicial notice of similar situations elsewhere where individuals of a completely distorted sense of humor or pranksters with juvenile minds have caused expensive delays, investigations, hardships and induced fear by such acts.' 196 F.Supp. at 679. See United States v. Omirly, 4 Cir. 1973, 488 F.2d 353, where the Fourth Circuit affirmed the conviction of a woman who remarked, 'You won't find my bomb' as her luggage was being searched.

Similarly, the individual to whom the false information is conveyed is important only insofar as it affects a finding whether the information poses a clear and present danger of interference with air commerce and safety. That the individual is not an airline official or a law enforcement officer is not determinative. Disruption can ensue when third parties are informed, or misinformed, such as members of the news media or simply members of the general public. For example, in Taylor v. United States, S.D.Fla.1973, 358 F.Supp. 384, the defendant and a companion approached several persons entering the terminal and defendant asked, 'Is this the plane that we are going to hijack?' 358 F.Supp. at 385. That the statement was made to third persons generally and not to airport personnel is not determinative of whether this and similar statements pose a clear and present danger to air commerce and safety in situations where it is reasonably foreseeable that such third persons will relay the...