United States v. Sasso , 695 F.3d 25 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1094
UNITED STATES OF AMERICA,
Appellee,
v.
GERARD SASSO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Boudin, Selya and Dyk,*
Circuit Judges.
Rheba Rutkowski, Assistant Federal Public Defender, for
appellant.
William D. Weinreb, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
September 17, 2012
*
Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. The government charged defendant-
appellant Gerard Sasso with one count of interfering with the
operation of an aircraft with reckless disregard for human life and
one count of making false statements. See 18 U.S.C. §§ 32(a)(5),
1001. After a four-day trial, a jury found the defendant guilty as
charged. The defendant was sentenced to serve three years in
prison. On appeal, the defendant raises a gallimaufry of issues,
only two of which need be discussed.
We begin with the defendant's plaint that the district
court should have granted his motion for a judgment of acquittal
because the evidence did not suffice to support his conviction
under 18 U.S.C. § 32(a)(5). See Fed. R. Crim. P. 29. We review de
novo the denial of a Rule 29 motion. See United States v.
Dwinells, 508 F.3d 63, 72 (1st Cir. 2007). In determining whether
the evidence suffices to sustain a conviction, we take the facts
and all reasonable inferences therefrom in the light most favorable
to the jury verdict. United States v. Walker, 665 F.3d 212, 224
(1st Cir. 2011). The verdict must stand unless the evidence is so
exiguous that no rational jury could conclude that the government
proved all the essential elements of the offense of conviction
beyond a reasonable doubt. United States v. Rodríguez-Vélez, 597
F.3d 32, 39 (1st Cir. 2010).
The evidence, taken agreeably to the verdict, reveals the
following. On the night of December 8, 2007, two members of the
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Massachusetts State Police (Lieutenant Timothy Riley and Trooper
Michael Basteri) flew a helicopter escort of a liquefied natural
gas tanker as it traversed Boston Harbor en route to a facility in
Everett, Massachusetts. At about 9:00 p.m. (as the helicopter was
flying over the Mystic River), the troopers noticed a bright green
light two to three miles to the northwest. Basteri recognized the
green light as a laser beam and warned Riley (the pilot) not to
look at it. Riley swerved to avoid direct contact, but the laser
beam hit the aircraft, filling the cockpit with bright green light.
The troopers elected to abandon their escort mission in
order to track down the source of the laser beam. As they flew
toward their quarry in a zigzag pattern, the beam struck the
helicopter several times. The final strike occurred when the
helicopter was approximately half a mile away from the source.
The troopers determined that the laser beam was emanating
from the third floor of a triple-decker house on the Medford-
Somerville border. They radioed this information to police
officers on the ground. Medford police, including Sergeant Jack
Buckley, responded and knocked on the door of the defendant's
third-floor tenement at 590 Main Street.
When the defendant answered the knock, the officers told
him that they were investigating a laser strike on a helicopter.
The defendant denied any involvement in the incident and said that
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he had no lasers or laser-like instruments in his abode. He
invited the officers to look around, which they did.
The officers pressed the question of whether the
defendant possessed any lasers, and he eventually admitted that he
had a small keychain laser. He nevertheless continued to maintain
that he did not possess any other lasers. By like token, he
denied any involvement in the helicopter incident.
Buckley then noticed an item on the defendant's
nightstand that appeared to be a laser pointer. When asked about
the artifact, the defendant began to backtrack. According to
Buckley, the defendant said, "I did it. It was me," and added that
he was sorry and did not mean to cause all the commotion. The
defendant explained that he had a penchant for stargazing, and that
when he saw the helicopter he decided to "light it up." When he
heard the helicopter directly overhead, he "got scared" and hid the
laser that he had pointed at the helicopter in a baseboard heater.
Buckley retrieved the hidden laser, which had a label
reading "DANGER laser radiation, avoid direct eye exposure, laser
diode, wavelength 532nm, max output 240mw." Asked if he owned any
other lasers, the defendant opened a bureau drawer containing nine
additional lasers.
On June 18, 2008, the defendant was arrested and brought
to the federal courthouse in Boston. Special Agent Michael Ryan of
the Department of Homeland Security testified that during the ride
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the defendant "acknowledged that he had lased the helicopter and he
further provided that he didn't realize it was a Massachusetts
State Police helicopter until it was around his house."
The defendant contends that this evidence was
insufficient to prove beyond a reasonable doubt that he had the
scienter required under 18 U.S.C. § 32(a)(5). He argues that the
government failed to prove that he willfully interfered with the
operation of the helicopter with reckless disregard for the safety
of human life. We disagree. In our view, the evidence was
sufficient to convict.
Drawing all plausible inferences in favor of the verdict,
a reasonable jury could have found — as this jury did — that the
government proved all the elements of the offense beyond a
reasonable doubt. The jurors heard testimony that the defendant
admitted that he had "noticed the helicopter and decided to light
it up." They also heard testimony that notwithstanding the
helicopter's zigzag flight path, the laser struck it repeatedly.
Based on this testimony, the jurors could reasonably infer that the
defendant intended all along to target the helicopter. Given the
warning label on the laser, the jurors could further infer that the
defendant knew that aiming the laser at the helicopter might
interfere with its operation and thereby pose a risk to human life.
To cinch matters, an attempt to cover up the commission of a crime
implies consciousness of guilt. See United States v. Gonsalves,
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668 F.2d 73, 75 (1st Cir. 1982); see also United States v. Vega
Molina, 407 F.3d 511, 530 (1st Cir. 2005) ("Consciousness of guilt
evidence is generally admissible in a criminal case."). Here, the
jurors could reasonably infer consciousness of guilt (and, thus,
intent) from the defendant's endeavor to conceal his possession of
the laser that he had pointed at the helicopter.
To say more about the Rule 29 claim of error would be
supererogatory. On the facts of this case, it is clear that a
rational jury could conclude that the government satisfied its
burden of proving all the elements of the charged crime beyond a
reasonable doubt. The motion for a judgment of acquittal was,
therefore, appropriately denied.
The defendant's next assignment of error implicates the
same count of conviction. He calumnizes the district court's
construction of the scienter requirement as reflected in both the
jury instructions and the verdict form. The defendant fully
preserved these objections below.
Preserved claims of instructional error are assessed on
appeal under a bifurcated framework. DeCaro v. Hasbro, Inc., 580
F.3d 55, 61 (1st Cir. 2009). We review de novo questions about
whether the instructions conveyed the essence of the applicable law
and review for abuse of discretion questions about whether the
court's choice of language was unfairly prejudicial. Id. In this
instance, the claim of instructional error involves the district
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court's interpretation of the scienter element of section 32(a)(5),
engendering de novo review. See United States v. Pitrone, 115 F.3d
1, 4 (1st Cir. 1997) (explaining that when a claimed error
"involves the interpretation of the elements of a statutory
offense, it poses a question of law" and engenders de novo review).
We hasten to add a caveat. Even an incorrect instruction
to which an objection has been preserved will not require us to set
aside a verdict if the error is harmless. See United States v.
Argentine, 814 F.2d 783, 788-89 (1st Cir. 1987). There are two
barometers for measuring harmless error in a criminal case. The
stricter standard, applicable mainly to issues of constitutional
dimension, requires the government to prove beyond a reasonable
doubt that the error did not influence the verdict. See Chapman v.
California, 386 U.S. 18, 23-24 (1967); Argentine, 814 F.2d at 789.
The less stringent standard, applicable mainly to trial errors that
are not of constitutional dimension, allows a conviction to stand,
error notwithstanding, as long as it can be said "with fair
assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not
substantially swayed by the error." Kotteakos v. United States,
328 U.S. 750, 765 (1946). Here, we assume, favorably to the
government, that the less stringent Kotteakos standard applies.
Section 32(a)(5) makes it a crime to:
willfully . . . interfere[] with or disable[],
with intent to endanger the safety of any
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person or with a reckless disregard for the
safety of human life, anyone engaged in the
authorized operation of [an] aircraft or any
air navigation facility aiding in the
navigation of any such aircraft . . . .
With respect to the charge brought under this section, the court
instructed the jury as follows:
Count 1 charges the defendant with a violation
of a federal statute that makes it a crime for
anyone acting with a reckless disregard for
the safety of others to willfully interfere
with persons operating an aircraft in the
special aircraft jurisdiction of the United
States. In order for the defendant to be
found guilty on Count 1, the government must
prove each of the following elements beyond a
reasonable doubt.
First, the government must prove that the
defendant willfully interfered with a person
engaged in the authorized operation of an
aircraft. To act "willfully" in this context
means to act deliberately and intentionally,
on purpose, as opposed to accidentally,
carelessly or unintentionally. If a person's
actions interfere with an aircraft operator,
you may infer that the person acted willfully
if his actions were deliberate and intentional
and had the natural and probable effect of
interfering with the aircraft operator.
Second, the government must prove that the
defendant acted with a reckless disregard for
the safety of human life. A defendant acts
with a reckless disregard for the safety of
human life if he is aware that his actions
create a substantial and unjustifiable risk to
the safety of human life and he consciously
disregards that risk.
The defendant argues that this instruction erroneously diluted the
mens rea requirement of section 32(a)(5) by inviting the jury to
"infer that the person acted willfully if his actions were
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deliberate and intentional and had the natural and probable effect
of interfering with the aircraft operator."
We conclude that this claim of error is well-founded.
Reasonable jurors could understand from the quoted instruction that
it would be enough to convict the defendant if they found that he
deliberately pointed a laser in the helicopter's direction and
interference occurred as a natural and probable consequence of that
action, regardless of whether the defendant knew that interference
was a natural and probable effect of the action. So viewed, the
instruction did not adequately distinguish between negligently (but
innocently) pointing a laser at objects in the sky without any
intent to interfere with the operation of an aircraft and
"willfully . . . interfer[ing]," which is the level of scienter
demanded by the plain text of the statute.
The defendant not only objected to the misleading nature
of the court's instruction, but also proposed an instruction
designed to cure the defect. While the court was under no
obligation to parrot the defendant's proposed jury instruction, see
United States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992), it had an
obligation to put the scienter question fairly to the jury. Here,
the instruction given strayed from an even-handed statement of the
applicable law.
In an effort to blunt the force of this reasoning, the
government asseverates that the charge as a whole correctly
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instructed the jury as to the required mens rea. In support, the
government points to the first part of the instruction on Count 1,
which stated that "the government must prove that the defendant
willfully interfered with a person engaged in the authorized
operation of an aircraft," and defined "willfully" as meaning
"deliberately and intentionally, on purpose, as opposed to
accidentally, carelessly or unintentionally."
We reject this asseveration. While this language was on
track, the instruction was derailed by the subsequent sentence,
which invited the jurors to infer that the defendant acted
willfully "if his actions were deliberate and intentional and had
the natural and probable effect of interfering with the aircraft
operator."
This error was not harmless. The defendant denied (or
attempted to explain away) the more damning admissions attributed
to him by the government's witnesses. The proof of scienter,
stripped of these admissions, was less than compelling. The upshot
is that the evidence of the defendant's guilt, though sufficient,
was not overwhelming.
In sum, scienter was a hotly contested and fairly
debatable issue. Viewing the record as a whole, we think that
there is too great a likelihood that the instructional error may
have influenced the verdict. Consequently, we are required to
vacate the conviction on the section 32(a)(5) count and remand for
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a new trial. See United States v. Pacheco, 434 F.3d 106, 117 (1st
Cir. 2006).
If more were needed — and we doubt that it is — the
district court used a shorthand in crafting the verdict form. On
the form, the parenthetical description of Count 1 read:
"Interfering with the Operation of an Aircraft with Reckless
Disregard for Human Life." The defendant contends that because
this description omitted the word "willfully," it may have left
jurors with the misimpression that they could convict him if they
found that he interfered with the operation of the helicopter with
reckless disregard for the safety of human life, regardless of
whether that interference was willful. This contention has some
bite: the omission of the term "willfully," though perhaps
unimportant had it been coupled with a more precise instruction
concerning scienter, reinforces our conclusion that the court's
instructional error was likely to have influenced the verdict.
We need not tarry over the defendant's other claims of
error. Because the defendant's conviction on Count 1 must be
vacated, a new trial will be required. We are loath to speculate
about how that new trial will proceed. For this reason, we think
that it would be imprudent to rule gratuitously upon the
defendant's remaining assignments of trial and sentencing error.1
1
These claims of error include an objection to the district
court's refusal to permit a view, complaints about the court's
exclusion of certain evidence, and a contention that the sentence
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One loose end remains. The defendant does not challenge
his conviction on Count 2 for making false statements. See 18
U.S.C. § 1001. That conviction must stand. But there is a rub:
the record is tenebrous as to whether the district court intended
the three-year sentence to run concurrently on Count 2.2 In all
events, the vacation of the Count 1 conviction changes the
sentencing calculus with respect to Count 2 and requires that the
court sentence the defendant anew on Count 2. See, e.g., United
States v. García-Ortiz, 657 F.3d 25, 31 (1st Cir. 2011); United
States v. Pimienta-Redondo, 874 F.2d 9, 14-16 (1st Cir. 1989) (en
banc). We therefore affirm the section 1001 conviction but remand
to the district court for resentencing in due course. The timing
of this resentencing is, of course, committed to the sound
discretion of the district court.
We need go no further. For the reasons elucidated above,
we affirm the defendant's conviction under 18 U.S.C. § 1001, vacate
the defendant's conviction under 18 U.S.C. § 32(a)(5), and remand
imposed was both procedurally and substantively unreasonable. It
is unlikely that any of these claims will arise in the same posture
if the case is retried.
2
This opacity most likely results from the fact that Count 2
had no bearing on the combined offense level. USSG §3D1.4(c)
directs the sentencing court to "[d]isregard any Group that is 9 or
more levels less serious than the Group with the highest offense
level. Such Groups will not increase the applicable offense level
. . . ." Here, the disparity between the offense level applicable
to the Count 1 Group and that applicable to the Count 2 Group
exceeded nine levels. Thus, Count 2 did not increase the
applicable offense level.
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to the district court for further proceedings consistent with this
opinion.
Affirmed in part, vacated in part, and remanded.
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