U.S. v. Tabacca, 88-5434

• Decision Date: 29 January 1991
• Docket Number: No. 88-5434,88-5434
• Citation: 924 F.2d 906
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James T. TABACCA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 906

924 F.2d 906

UNITED STATES of America, Plaintiff-Appellee, v. James T. TABACCA, Defendant-Appellant.

No. 88-5434.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 7, 1990.

Decided Jan. 29, 1991.

Peter M. Horstman, Federal Public Defender, Kerry Bensinger, Deputy Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

Robert L. Brosio, U.S. Atty., Robin R. Scroggie, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before REINHARDT and LEAVY, Circuit Judges, and KING, Senior District Court Judge. ^*

SAMUEL P. KING, District Judge:

Tabacca was convicted for interfering with a flight attendant under 49 U.S.C.App. Sec. 1472(j).

Tabacca asserts the District Court erred both in denying his Motions for Judgment of Acquittal and in refusing to give a requested jury instruction. Tabacca also argues that 49 U.S.C.App. Sec. 1472(j) is unconstitutionally vague. Finally, Tabacca asserts the District Court abused its discretion by dismissing an absent juror after the commencement of deliberations.

The decisions of the District Court as to the Motions for Judgment of Acquittal and the requested jury instruction are AFFIRMED. This panel does not find 49 U.S.C.App. Sec. 1472(j) to be unconstitutionally vague. Finally, the dismissal of the absent juror after deliberations had begun was an abuse of discretion; therefore this case is REMANDED for a new trial.

Statement of Facts

On December 30, 1987, Tabacca was a passenger on a flight from Boston to Los Angeles. Tabacca is a smoker and was assigned to a seat where smoking initially was to be permitted. Subsequently, however, because of the cancellation of another flight, there was an unusually large demand for non-smoking seats on Tabacca's flight. Due to federal regulations which require commercial airlines to provide a non-smoking area for all passengers who request such seating, the entire airplane, except the first class section, was designated as non-smoking.

A ticket agent boarded the plane approximately 10 minutes before take-off to notify the passengers of this change. The announcement was repeated again by flight service manager Pamela Martinez during taxiing and after the plane had taken off. Apparently, many of the smoking passengers were quite upset by the change.

Tabacca was seated next to Robert Golian. Flight Attendant Evelyn Paz was working in Tabacca's section of the airplane. Paz saw the two men smoking and asked them to extinguish their cigarettes. Tabacca remained silent, but Golian told According to Martinez, the following then transpired.

                Paz he intended to continue smoking since he had paid for a smoking seat.  Neither of the two men put out their cigarettes.  Paz informed them that if they refused to cooperate she would get the Captain, to which Golian replied, "Go ahead.  Get the Captain."    Paz then went to the cockpit and informed the Captain of the problem.  The Captain did not leave the cockpit at that time, but Martinez, the flight service manager, 1 agreed to speak with Tabacca and Golian
                

Martinez approached Tabacca and Golian with her flight service manual. After she introduced herself, Tabacca responded, "This is fucking bullshit. I've had my ticket for three months and TWA isn't going to fucking tell me when I can smoke. I'm going to fucking smoke if I want to." Martinez then knelt down next to Tabacca and tried to explain the federal regulations, but Tabacca continued to assert that he intended to smoke. Martinez then stood up, using Tabacca's armrest to raise herself. As Martinez took her first step, Tabacca grabbed her by the arm and jerked and twisted her arm, causing her to strike the bulkhead of the seat across the aisle. ² Martinez then went straight to the cockpit, told the Captain what had just occurred, and asked him to speak to Tabacca. The Captain then left the cockpit and spoke with Tabacca.

This was the only interaction between Tabacca and Martinez during the flight. For the rest of the flight, Martinez dealt with other passengers in the coach section who were also upset by the no-smoking policy. She also served and removed dinner trays, and served coffee. However, she was so upset by the confrontation with Tabacca that she had to go to the lower galley of the aircraft several times to be alone and regain her composure.

When the flight reached Los Angeles, police were waiting. The flight attendants identified eleven passengers who had disobeyed the no-smoking requirement, which included Tabacca, Golian, and nine other passengers. Although four people were arrested, only Tabacca was prosecuted.

The following day, Martinez was examined by Dr. Leon Artzner. Dr. Artzner testified that Martinez complained of soreness across the right forearm and around the right wrist, had a thin abrasion 15 centimeters long on her right forearm, and tenderness and mild muscle spasms in her lower back. Martinez was given medication and put on medical leave.

DISCUSSION

I. District Court's Denial of Tabacca's Motion For Judgment of Acquittal

Tabacca argues that the District Court erred for two reasons in denying his motions for Judgment of Acquittal pursuant to Fed.R.Crim.P. 29(a). First, he asserts that a violation of 49 U.S.C.App. Sec. 1472(j) ³ requires that the safety of the aircraft be

endangered, and that there was insufficient evidence in this case to make such a finding. Second, Tabacca argues that even if endangering the safety of the aircraft is not required, there was insufficient evidence for the jury to find that Tabacca had "intimidated" Pamela Martinez.

A. Standard of Review

On appeal, in ruling on a motion for judgment of acquittal, the appellate court should determine whether, viewing the evidence in the light most favorable to the government, the jury could reasonably find appellant guilty beyond a reasonable doubt. United States v. Hazeem, 679 F.2d 770, 772 (9th Cir.), cert. denied, 459 U.S. 848, 103 S.Ct. 106, 74 L.Ed.2d 95 (1982).

The requirements for a violation under 49 U.S.C.App. Sec. 1472(j) is a question of statutory interpretation, and is therefore subject to de novo review by this court. United States v. Fredman, 833 F.2d 837, 838 (9th Cir.1987); United States v. Mehrmanesh, 689 F.2d 822, 827 (9th Cir.1982).

When reviewing the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the government and draw all reasonable inferences favorable to the government. The conviction will be upheld if any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Merrill, 746 F.2d 458, 461 (9th Cir.1984), cert. denied, 469 U.S. 1165, 105 S.Ct. 926, 83 L.Ed.2d 938 (1985).

B. Interpretation of 49 U.S.C.App. Sec. 1472(j); Sufficiency of the Evidence as to the Endangerment of the Aircraft

1) Legislative History of Sec. 1472(j)

In support of his position that he must have endangered the safety of the aircraft to have violated Sec. 1472(j), Tabacca points to remarks made by the provision's sponsor, Senator Engle.

When the Senate bill introducing Sec. 1472(j) was first drafted, it applied only to interference with the cockpit crew, and not with the flight attendants. A subsequent House amendment made it applicable to flight attendants as well. 107 Cong.Rec. 17170 (August 28, 1961). In the debate on the Senate floor concerning acceptance of the House amendment, Senator Engle made the following statements:

I believe we were right in the first instance in not applying to stewardesses the provision which applied to flight crew members who were actually employed in duties directly involving the safety of the aircraft. But the crime having to do with interference with stewardesses may be prosecuted, either under section 1 or the other section. We assume that, if it was a minor crime, like that of a drunk quarreling with a stewardess over whether or not he could keep his bottle, he would not be charged under the major punishment portion of the bill, but under the minor provision, which would not carry the heavy penalty.

Id. The House amendment was subsequently accepted by the Senate and became part of the statute as passed.

Relying on Senator Engle's statement, Tabacca argues that minor crimes directed at flight attendants should be punished pursuant to less severe provisions than Sec. 1472(j), such as Sec. 1472(k ). ⁴

However, Tabacca's use of Senator Engle's remarks to support his construction of the statute is not persuasive.--"If [statutory] language is unambiguous, and if Congress has not clearly expressed a contrary intent, we will regard that language This panel finds 49 U.S.C.App. Sec. 1472(j) to be clear on its face; therefore the plain language of the provision controls. Looking to that language, there is no indication that the safety of the aircraft need be endangered. Rather, an act of assault, intimidation, or threat must merely interfere with the performance of the flight attendant's duties.

                as conclusive."    United States v. Schwartz, 785 F.2d 673, 679 (9th Cir.), cert. denied, 479 U.S. 890, 107 S.Ct. 290, 93 L.Ed.2d 264 (1986) (citing Russello v. United States, 464 U.S. 16, 17, 104 S.Ct. 296, 297, 78 L.Ed.2d 17 (1983)).  The remarks of a legislator, even those of the sponsoring legislator, will not override the plain meaning of a statute. 5   See Weinberger v. Rossi, 456 U.S. 25, 35 n. 15, 102 S.Ct. 1510, 1517 n. 15, 71 L.Ed.2d 715 (1982) ("The contemporaneous remarks of a sponsor of legislation are not controlling in analyzing legislative history.")
                

2) Sufficiency of the Evidence

Since we find that Sec. 1472(j) does not require that the aircraft be endangered for a violation to occur, it is unnecessary to reach the issue of whether sufficient evidence was presented at trial to prove that element of the offense.

C. Sufficiency of the Evidence as to "Intimidat...