U.S. v. Mena

• Citation: 933 F.2d 19
• Decision Date: 06 March 1991
• Docket Number: No. 88-2071,88-2071
• Parties: UNITED STATES of America, Appellee, v. Edward Ramon MENA, Defendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 19

933 F.2d 19

109 A.L.R.Fed. 467

UNITED STATES of America, Appellee, v. Edward Ramon MENA, Defendant, Appellant.

No. 88-2071.

United States Court of Appeals, First Circuit.

Heard March 6, 1991.

Decided May 9, 1991.

Maria H. Sandoval, Santurce, P.R., for defendant, appellant.

Luis A. Plaza, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., was on brief, Hato Rey, P.R., for appellee.

Before BREYER, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Asserting that guilt should not have attached for a hijack that did not succeed or for the empty menace of threatening words backed only by an ersatz bomb that could not explode, defendant-appellant Edward Ramon Mena (Mena) invites us to reverse his convictions for aircraft piracy and related charges. We decline the invitation.

I. BACKGROUND

We depict the evidence presented at trial in the light most favorable to the prosecution, drawing all reasonable inferences in its favor. See United States v. Devin, 918 F.2d 280, 283 (1st Cir.1990); United States v. Tierney, 760 F.2d 382, 384 (1st Cir.), cert. denied, 474 U.S. 843, 106 S.Ct. 131, 88 L.Ed.2d 108 (1985).

Virgin Islands Seaplane Shuttle Flight 329 left St. Thomas, U.S. Virgin Islands, on June 5, 1987, en route to San Juan, Puerto Rico. The flight carried a complement of seventeen passengers, appellant included, plus the pilot and copilot. Mena had a front row seat. He was dressed in a camouflage outfit and fatigue hat. As the airplane approached the coast of Puerto Rico, Mena strode toward the cockpit, clutching in one hand a tin can equipped with a wick and protruding brass contacts. In his other hand, he held a Bic cigarette lighter. Referring to the can as a "very sensitive explosive device" and continually flicking his Bic, he threatened to "blow up the aircraft" if he was not flown to Cuba.

While ostensibly agreeing to oblige the hijack demand, the pilot explained that the airplane had insufficient fuel to make so long a trip; he suggested they refuel in San Juan, offload passengers to increase flying range, and then "island hop" to Cuba, making additional refueling stops along the way as might be necessary. Mena acquiesced in this plan. Because the aircraft was encountering turbulence, the pilot asked Mena to take a seat lest he drop the bomb and detonate it. Mena sat down, facing sideways, clamping the device between his thighs.

The copilot surreptitiously transmitted an encoded hijack alert through the aircraft's transponder. Upon receiving the signal, the control tower made certain that other airplanes were vectored out of the way. Flight 329 was given priority to land at the San Juan airport. To allow security personnel time to take their positions, the pilot abjured the normal landing routine, instead taxiing to the end of the runway and back. The pilot kept the wing flaps elevated, thereby signaling that he did not want assistance. He also tried to disable the aircraft by shutting down the fuel line before stopping the engines. ¹

The aircraft stopped at the arrival ramp at about 5:30 p.m. Security personnel surrounded it. The luggage was removed. The passengers and the copilot were allowed to leave. The pilot remained on board for some time and then deplaned. Mena took refuge in the cockpit, communicating with the FBI by means of the aircraft's radio and the control tower. During that interlude, he again warned his rapt audience that he had a bomb and added that he had confiscated a flare gun. He repeated his demand to be transported to Cuba. After more than four hours of negotiations, Mena agreed to disembark. On doing so, he was arrested. The tin can was found to contain a petroleum distillate similar to kerosene.

II. INDICTMENT, TRIAL, AND ISSUES ON APPEAL

We set out the pertinent portions of the statutes of conviction, and related provisions, in the appendix. The grand jury indicted Mena on five counts: (1) committing an act of aircraft piracy in violation of 49 U.S.C.App. Sec. 1472(i)(1) (count one); (2) boarding an aircraft with an explosive or incendiary device in violation of 49 U.S.C.App. Sec. 1472(l )(1), (2) (count two); ² (3) interfering with an aircraft's crew in violation of 49 U.S.C.App. Sec. 1472(j) (count three); (4) placing a destructive device aboard an aircraft in violation of 18 U.S.C. Sec. 32(a)(2) (count four); and (5) transporting an explosive in interstate commerce with intent to intimidate in violation of 18 U.S.C. Sec. 844(d) (count five). After a five-day trial, Mena was convicted on all charges except count three. ³ He was sentenced to a mandatory minimum twenty-year prison term on count one and to shorter, but concurrent, prison terms on each of the remaining three counts of conviction.

At trial, the appellant placed most of his chips behind an unsuccessful insanity defense. On appeal, he has jettisoned this approach, instead mounting a multifaceted offensive on a series of other fronts. His most powerful forays attack the propriety of the jury empanelment; the court's failure either to give a lesser included offense instruction linking counts one and two or to afford relief under the Double Jeopardy Clause; the sufficiency of the government's proof concerning the device that was carried on board; and the sufficiency of the proof anent aircraft piracy. We address these issues in inverse order.

III. SUFFICIENCY OF THE EVIDENCE

Appellant's principal objections are to the sufficiency of the government's proof. Acknowledging that the evidence on count four was ample, appellant challenges each of the remaining counts of conviction. In reviewing any such challenge, our mission is to determine whether "the evidence in its totality, taken in the light most flattering to the government, together with all legitimate inferences to be drawn therefrom [is enough that] a rational trier of facts could have found the appellant guilty beyond any reasonable doubt." Tierney, 760 F.2d at 384. We begin with count one, move thereafter to count five, and end with count two.

A. Aircraft Piracy.

Count one of the indictment charged appellant with having committed an act of aircraft piracy. The Air Piracy Statute provides that:

the term "aircraft piracy" means any seizure or exercise of control, by force or violence or threat of force or violence, or by any other form of intimidation, and with wrongful intent, of an aircraft within the special aircraft jurisdiction of the United States.

49 U.S.C.App. Sec. 1472(i)(2). The elements of the offense are, therefore, (1) a seizure of, or exercise of control over, an aircraft, (2) by means of force, violence, or intimidation, (3) with wrongful intent, (4) when the aircraft is within the special aircraft jurisdiction of the United States. Accord United States v. Dixon, 592 F.2d 329, 339-40 (6th Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179, 60 L.Ed.2d 1056 (1979). Appellant contends that the government failed to prove these elements beyond a reasonable doubt. He is wrong. ⁴

According to the trial testimony, Mena approached the cockpit in mid-flight, dressed in militaristic garb and carrying what he proclaimed was a "sensitive explosive device." He threatened to blow up the aircraft unless he was flown to Cuba. He was flicking his lighter in a way that indicated a willingness to ignite the fuse. Even after receiving false assurances from the pilot, Mena did not simply repair to his seat; he sat down sideways, assuming a position from which he could watch both the pilots (fore) and the passengers (aft). At all times, he kept the menacing device prominently in view. Moreover, Mena's actions were not completely unproductive. The crew did not overtly challenge his hegemony. There was also significant disruption of the flight's normal routine: other aircraft were vectored out of the way, an unwonted landing priority materialized, and the ordinary taxi run was prolonged. Although the passengers and crew were able to deplane shortly after arrival, the pilot's departure was delayed. Mena himself appropriated the aircraft's flare gun and remained aboard for several hours, in sole physical control of the aircraft, continually demanding to be taken to Cuba.

Notwithstanding this mountain of evidence, defense counsel has made the best of a difficult climb. First, citing the pilots' coolness under pressure (e.g., alerting the control tower that a hijack was in progress, persuading Mena of the need to land in San Juan, undertaking aeronautical sabotage), she argues that the crew never relinquished control of the aircraft. In a closely related vein, she asseverates that Mena's conduct aboard Flight 329 necessarily fell short of what was required to prove a completed or consummated act of air piracy. Counsel claims that, at most, the evidence established merely an attempt (a crime not charged in the indictment at all). Yet, the foundation of these contentions--counsel's assertion that, in this case, the Air Piracy Statute only criminalizes conduct which occurred while the aircraft was aloft--is set in quicksand.

1. Special Aircraft Jurisdiction. To convict a defendant of aircraft piracy, the government must prove that the first three elements of the offense, see supra p. 23, were committed "within the special aircraft jurisdiction of the United States." 49 U.S.C.App. Sec. 1472(i)(2). The special aircraft jurisdiction attaches

while th[e] aircraft is in flight, which is from the moment when all external doors are closed following embarkation until the moment when one such door is opened for disembarkation or in the case of a forced landing, until the competent authorities take over responsibility for the aircraft and for the persons and property aboard.

49 U.S.C.App. Sec. 1301(38). Appellant's claim that his guilt must be judged solely on the basis of his conduct up until disembarkation began depends, therefore, on the assumption that, because the airplane landed when and where it was scheduled to land, no ...