U.S. v. Lamons

• Decision Date: 03 July 2008
• Docket Number: No. 06-14427.,06-14427.
• Citation: 532 F.3d 1251
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Turhan Jamar LAMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

532 F.3d 1251

UNITED STATES of America, Plaintiff-Appellee, v. Turhan Jamar LAMONS, Defendant-Appellant.

No. 06-14427.

United States Court of Appeals, Eleventh Circuit.

July 3, 2008.

Regina Cannon Stephenson and Nicole F. Evans-Lambert, Fed. Pub. Defenders, Fed. Def. Program, Atlanta, GA, for Lamons.

Jane Wilcox Swift, Amy Levin Weil, U.S. Atty., Atlanta, GA, for U.S.

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

Before TJOFLAT, HULL and WILSON, Circuit Judges.

TJOFLAT, Circuit Judge:

The defendant in this case was a flight attendant, Turhan Jamar Lamons, who the Government alleged was responsible for two incidents intended to disrupt the normal operations of two commercial flights. The first incident involved a threatening telephone call made on September 18, 2001, just before the scheduled departure of AirTran Airways Flight 278 from Atlanta to Boston. The second incident involved a fire set to the lavatory of Comair Flight 5491 on May 8, 2003, en route from Atlanta to Huntsville, Alabama. In two separate jury trials, Lamons was found guilty of four counts: (1) willfully and maliciously conveying false information consisting of a false bomb threat, (2) interfering with crew members by setting fire to an aircraft, (3) willfully setting fire to a civil aircraft operated in interstate commerce, and (4) knowingly and unlawfully using fire to commit a felony prosecutable in federal court.

The district court sentenced Lamons to a total term of 271 months' imprisonment. Lamons now appeals his convictions, contending that the district court abused its discretion by admitting certain billing records in his first trial and by permitting evidence of his conviction in the first trial to be admitted during his second trial. Lamons also appeals his sentences, arguing that the district court improperly found that Lamons had intentionally endangered the safety of an aircraft by setting fire to it, and that the district court's findings of fact infringed his constitutional rights under the Fifth and Sixth Amendments. We affirm the district court's judgment in all respects.

I.

A. The Threatening Telephone Call

On September 18, 2001, Turhan Jamar Lamons was working as a flight attendant for AirTran Airways ("AirTran") and was assigned to Flight 278, which was scheduled to depart Atlanta International Airport at about 8:30 a.m. for Boston. According to other members of the crew of Flight 278, Lamons did not want to leave Atlanta that day. Flight attendant Ashfaq Nensey testified that on September 17, Lamons confided in him that Lamons was too frightened to go to Boston. Nensey responded that Lamons could probably be removed from the flight "because the [post-September 11] situation [was] so delicate," but Lamons replied that he would not be pay-protected and that he needed the money. The next morning, Lamons told Nensey that he had just been notified that his grandmother had passed away. Nensey informed Lamons that, with a death in the family, Lamons could request removal from Flight 278 without a reduction in pay.¹

When Nensey boarded Flight 278, he was surprised to see Lamons standing in the back of the aircraft. Lamons was talking on his cell phone while the passengers were boarding, which was against AirTran policy. Nensey began to walk toward Lamons several times to remind him of the company policy; each time that he saw Nensey approach, however, Lamons would hang up his cell phone. This sequence happened several times. Nensey last noticed Lamons using his cell phone about one or two minutes prior to departure.

On the morning of September 18, 2001, AirTran gate agent Nicole Miller was manning Gate C-10 at the Atlanta airport. While she stood at the top of the jetway eating a breakfast sandwich, the telephone at Gate C-10 began to ring. By the time Miller was able to answer it, however, the telephone had stopped ringing. Miller then returned to the jetway. Miller estimated that this occurred between five and ten times. Finally, she succeeded in answering the telephone at some time between 8:15 a.m. and 8:20 a.m. A male voice informed her that everyone on Flight 278 was going to die. Miller replied, "Excuse me?" The caller repeated the warning once more before the line went dead. Miller quickly determined that Flight 278 was about to depart from the adjacent gate, Gate C-12, and immediately alerted her supervisor. By the time Miller walked over to Gate C-12, Flight 278 had been evacuated. The flight's crew and passengers stood in the waiting area. Miller observed Lamons, whom she did not know at the time. He was crying and telling others that he did not want to fly to Boston. Nothing was wrong with the aircraft and no bomb was ever discovered. Flight 278 departed for Boston with a different aircraft and the same crew, sans Lamons, who said that he was too upset to fly.

The Lavatory Fire

Lamons was the lone flight attendant assigned to Comair Flight 5491 on May 8, 2003, which departed Atlanta at about 7:25 p.m. for Huntsville, Alabama. The aircraft was a small regional jet, with one lavatory located in the tail section. The flight was nearly full that day. Apart from Lamons, the only other crew were Captain James Todd Stegall and First Officer Tom Thurmbuchler. It was an unusually hot day. With several of the passengers complaining of the heat, Lamons distributed drinking water prior to take-off. Many passengers noticed an acrid smell while the airplane was still on the ground; some believed it was smoke, while others believed it was the smell of jet fuel. The smell dissipated prior to take-off.

Just five or six minutes after take-off, Lamons notified Captain Stegall over the intercom (which was next to the cockpit door at the front of the plane) that he had noticed smoke in the lavatory. The aircraft was equipped with smoke and fire detectors throughout the plane, including in the lavatory, but none of those instruments indicated any fire at that time (or at any other time during the flight, for that matter), so Captain Stegall ordered Lamons to return to the lavatory to ascertain additional details, including the source of the smoke, whether there was a wisp of smoke or just the smell of smoke, and whether there was any heat associated with the smoke. According to Sheila Kliemann, a former flight attendant and in-flight operations specialist with Comair who spoke with Lamons later that evening, Lamons claimed to have seen a "light haze" in the lavatory at that time. Lamons called Captain Stegall a few minutes later and told him that it was "definitely smoke" and there was "heat near the floor." From this latter fact Captain Stegall deduced that the source of the smoke was likely a fire. Furthermore, Captain Stegall knew that there were flight control cables routed directly underneath the lavatory floor. He was also aware that hydraulic, electric, pneumatic, and fuel lines could be routed through that same area. First Officer Thurmbuchler testified that they took the report of smoke very seriously because a fire is "one of the worse [sic] things that can happen on an aircraft." Accordingly, Captain Stegall and First Officer Thurmbuchler decided it was necessary "to declare an emergency and divert to landing as soon as possible."

Lamons asked Captain Stegall whether he ought to use a fire extinguisher. Captain Stegall responded affirmatively, but did not specify whether Lamons should use a water fire extinguisher or a halon fire extinguisher.² Lamons later told Kliemann that the haze had gotten thicker by that point. At no time, however, did Lamons don portable breathing equipment or a mask for his protection. He claimed that when he opened the compartment underneath the sink, he perceived ashes but no flames. He then grabbed the water fire extinguisher and sprayed the ashes.³

After declaring an emergency, Captain Stegall asked for an immediate descent to a lower altitude so as to receive vectors and radar coverage, and worked with air traffic control to choose the closest airfield that was suitable for their landing needs, an airfield with available runway lights and fire trucks. That airfield was Russell Field in Rome, Georgia. Captain Stegall and First Officer Thurmbuchler then initiated the "toilet smoke procedure," which entailed running through a lengthy checklist of actions, such as pulling circuit breakers, designed to identify and eliminate the potential sources of the problem. They were not able to locate the source of the problem.

Captain Stegall recalled speaking with Lamons one more time prior to landing to receive a status report and to ensure that the cabin was secure and the passengers were prepared. Lamons replied over the intercom that as far as he could tell from his vantage point at the front of the plane, things were not getting worse at least. The plane landed at 7:45 p.m. Captain Stegall decided to taxi off the runway to the ramp. Captain Stegall again asked Lamons whether things were getting worse and whether there was any more smoke, to which Lamons replied negatively. The crew and passengers then deplaned through the main cabin door and clustered in one area in front of the plane at a safe distance. A couple of minutes later, the fire department arrived.

Captain Stegall accompanied another firefighter and the Rome fire marshal, Vann Baxter, aboard the plane to examine and collect physical evidence. There was a water fire extinguisher on the floor of the cabin. Inside the lavatory, there was water, a small amount of ash, and bits of charred newspaper on the floor. There was a larger fragment of charred newspaper on top of the sink. In the compartment beneath the sink was more water, ash, and pieces of charred newspaper, as well as a partially burned and melted HVAC hose. A panel of the compartment door also featured a burn pattern about the size of a basketball. In the waste bin next to the sink, beneath some wet paper towels, was a...