United States v. White, 72-1114.

• Decision Date: 20 March 1973
• Docket Number: No. 72-1114.,72-1114.
• Citation: 475 F.2d 1228
• Parties: UNITED STATES of America, Appellee, v. Bobby Richard WHITE, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

475 F.2d 1228 (1973)

UNITED STATES of America, Appellee, v. Bobby Richard WHITE, Appellant.

No. 72-1114.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1972.

Decided March 20, 1973.

Roy G. Hall, Jr., Winston-Salem, N. C. (Court-appointed counsel), for appellant.

Bradley J. Cameron, Asst. U. S. Atty. (William L. Osteen, U. S. Atty., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.

BOREMAN, Senior Circuit Judge:

Bobby Richard White, tried by the court without a jury, appeals his conviction on an indictment¹ which charged him with making a false report, willfully, maliciously, and with reckless disregard for the safety of human life, concerning an attempt to do an act which would be a crime prohibited by Title 18 U.S.C. § 32, in violation of 18 U.S.C. § 35(b).² We affirm.

Shortly after midnight on the 17th of June, 1971, White entered a Piedmont Airlines jet which was parked for the night in the airport in Winston-Salem, North Carolina. He was carrying a cloth handbag. Confronting Captain Leon Fox, the only person aboard, White stated that the bag contained nitroglycerin and sulfuric acid and ordered Fox to fly him to Cuba, stating "If I drop this bag it will blow us to bits. I don't give a damn." Fox made preparations to comply with White's command and the plane was actually refueled to capacity. At trial Fox testified that he was convinced White was serious because of the latter's statement.

Fox advised White that he would need a crew to assist him and White permitted only one other person to come aboard, Warren Tadlock, vice-president of flight operations for Piedmont Airlines, who suspected that the bag contained nothing harmful because he had some information that White had handled the bag carelessly earlier in the evening. Tadlock was ordered to crawl forward on his hands and knees along the aisle to the co-pilot's seat and, while he was doing so, White held the bag on his back. Tadlock seized the bag from White's grasp when the latter's attention was diverted by the unexpected arrival of a federal sky-marshal who then subdued White. The bag was subsequently found to contain nothing but personal effects.

White was sentenced to a five-year term of imprisonment but after a period of observation and study pursuant to 18 U.S.C. § 4208(b), he was resentenced to a term of four years.

On appeal, White presents two issues: (1) the indictment is fatally defective for failing to allege all the essential elements of the crime in that it fails to allege specifically the intent required to constitute a violation of § 32, and also in that it fails to cite the particular clause or paragraph of 18 U.S.C. § 32 claimed to have been violated by his alleged acts and conduct; (2) no crime has been committed because § 32 requires an intent to damage or destroy an aircraft and his threats were always conditional.

In support of its argument that the indictment is not defective, the prosecution relies on United States v. Chunn, 347 F.2d 717, 720 (4 Cir. 1965):

"`It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation and to plead the judgment, if one be rendered, in bar of further prosecution for the same offense. . . .\'"

Even prior to Chunn this court had approved the concept and practice of liberalized criminal pleadings so long as the indictment contains a concise and definite statement of the essential facts constituting the offense charged. Finn v. United States, 256 F.2d 304, 306 (4 Cir. 1958). See also Hagner v. United States, 285 U.S. 427, 431-433, 52 S.Ct. 417, 76 L.Ed. 861 (1932), and Rule 7(c) F.R.Crim.P.

Title 18 U.S.C. § 35(b) requires the combination of three elements to constitute a crime: (1) willfully and maliciously, or with reckless disregard for the safety of human life, imparting false information, (2) knowing such information to be false, (3) concerning an attempt being made or to be made to do an act which would be a violation of chapter 2 of Title 18 U.S.C. (i.e., here 18 U.S.C. § 32).

It is important to bear in mind that the substantive offense of which White stands convicted is the violation of § 35(b) pertaining to the giving of false information and that White is not charged with a substantive violation of any of the provisions of 18 U.S.C. § 32. Therefore, with this caveat, we look to 18 U.S.C. § 32³ to determine the essential elements of a crime thereunder.

The first paragraph of § 32 (see foot-note 3) makes it a crime to willfully damage or destroy a civil aircraft used or employed in interstate commerce; the paragraph contains no reference to the means employed to accomplish the damage or destruction.

The second paragraph of § 32 makes it a crime to willfully do certain acts with respect to an engine, propeller, appliance, or spare part of such aircraft, with intent to damage or destroy such aircraft.

The third paragraph of § 32 makes it a crime to willfully place any destructive substance in or upon any such aircraft "with like intent."

Thus, it clearly appears that the second and third paragraphs which refer to "such aircraft" must be read and considered in connection with the first paragraph which pertains to a civil aircraft used or employed in interstate commerce. The second paragraph provides that the proscribed acts must be done with the intent to damage or destroy the aircraft. Obviously, the phrase in the third paragraph — "with like intent" — must be construed to mean the intent to damage or destroy such aircraft.

As we construe the remaining paragraphs of § 32 they can have no possible relevance in the instant case. White complains that the indictment should have specified a particular paragraph of § 32 rather than the entire section. However, an examination of the record discloses beyond doubt or question that counsel for White was fully aware of the nature of the charges at all times. From the discussion and argument before the court by defense counsel and counsel for the prosecution, it is clear that the case was tried upon the theory and with the understanding that the indictment was intended to charge defendant with knowingly giving false information concerning an attempt to do an act which would be a crime prohibited by the third paragraph of § 32, i. e., placing a destructive substance aboard the aircraft. This understanding on the part of the defendant and his counsel is further evidenced by their contention that the charge in the indictment that the defendant gave false information with respect to the placing of a destructive substance aboard the aircraft was insufficient to charge a violation of § 35(b) unless accompanied by an allegation that the information given disclosed the intent to damage or destroy the aircraft, such intent being an essential element of the crime prohibited by § 32.

It is interesting to look to 18 U.S.C. § 35 as first enacted,⁴ to take note of the subsequent changes therein from its original form,⁵ and to examine the very few cases decided thereunder.

In Smith v. United States, 283 F.2d 16 (6 Cir. 1960), the defendant was convicted of conveying to a federal agency in charge of an airport control tower, by telephone, false information that a bomb was on an outgoing civil aircraft. While the question presented in the instant case was not there involved, our attention is attracted to the wording of the one-count indictment drawn under § 35 in its original form, as follows:

"Robert James Smith did willfully impart and convey and cause to be imparted and conveyed, false information, knowing the same to be false, concerning an attempt and alleged attempt being made and to be made to willfully place and cause to be placed a destructive substance, to wit: a bomb, in, upon and in proximity to a civil aircraft used, operated and employed in interstate commerce with intent to damage, destroy, disable and wreck such aircraft, a crime prohibited by section 32, Title 18, United States Code, a part of Chapter II, Title 18, United States Code, . . . ." (Emphasis added.)

In support of his contention that the indictment in the case before us is fatally defective for failure to charge the false communication of the essential element of intent to damage or destroy the aircraft, as provided in § 32, White relies upon Carlson v. United States, 296 F.2d 909 (9 Cir. 1961). In that case an information was drawn under § 35, the misdemeanor statute in the form as originally enacted, and charged that the defendant

". . . did wilfully impart and convey to Gayle Zimmer, a stewardess, false information concerning an alleged attempt being made to wilfully place a destructive substance, to wit: explosives, upon American Airlines Flight number 8, a civil aircraft used, operated and employed in interstate commerce, well knowing such information to be false." (296 F.2d at 910)

The court concluded that in order to determine the elements of the offense sought to be charged it was necessary to examine 18 U.S.C. §§ 32 and 35. Upon such analytical examination the information was held to be fatally defective. At 296 F.2d p. 911 the court stated:

"The act concerning which false information was given, as alleged in the information (the wilful placing of explosives upon an aircraft) finds its counterpart only in the third paragraph of section 32, quoted above. But, under that paragraph of section 32, the wilful act there described is not a crime unless done `with like intent,\' namely, the intent stated in the second paragraph of section 32, `to damage, destroy, disable, or wreck any such aircraft; . . .\'

"This indispensable intent factor of the second element of the crime described in section 35 is wholly missing from the language of the information. Stated differently, the alleged false information was not (as required in order to constitute an offense) that

...