United States v. Hassouneh ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4401
MAHMOUD HASSOUNEH,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-97-268)
Argued: October 29, 1999
Decided: January 13, 2000
Before WILKINS and WILLIAMS, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Williams wrote
the opinion, in which Judge Wilkins and Senior Judge Butzner joined.
_________________________________________________________________
COUNSEL
ARGUED: Walter Lamar Jones, CLIFFORD, CLENDENIN,
O'HALE & JONES, L.L.P., Greensboro, North Carolina, for Appel-
lant. Michael Francis Joseph, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee. ON BRIEF: Walter C.
Holton, Jr., United States Attorney, Greensboro, North Carolina, for
Appellee.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Appellant Mahmoud Hassouneh appeals his conviction for falsely
stating that there was a bomb in the bag he sought to place aboard a
civil aircraft. Hassouneh was prosecuted under 18 U.S.C.A. § 35(b)
(West Supp. 1999), a felony provision, which requires the Govern-
ment to prove that an offender acted "willfully and maliciously, or
with reckless disregard for the safety of human life." Id. Hassouneh
appeals his conviction on the ground that the district court improperly
instructed the jury on the meaning of "willfully and maliciously." In
addition, Hassouneh asserts that he was improperly prevented from
presenting evidence relevant to showing that he did not act mali-
ciously. Because we agree with Hassouneh's arguments that the dis-
trict court failed adequately to instruct the jury on the meaning of
"maliciously," as used in § 35(b), and erroneously prevented him
from presenting evidence relevant to his defense, we vacate his con-
viction and sentence and remand for a new trial.
I. FACTUAL BACKGROUND
A little before 7:00 a.m. on Saturday, November 15, 1997, Mah-
moud Hassouneh arrived at North Carolina's Piedmont Triad Airport,
in Greensboro, intending to fly to Orlando, Florida to attend his cou-
sin's wedding. It was the first day off from work that Hassouneh, a
small convenience store owner, had taken in four years. Hassouneh's
AirTran Airways flight was scheduled to depart at 8:20 a.m., and
shortly after 7:00 a.m. he approached the ticket counter for AirTran
Airways where he was greeted by two airline employees, Amy Havas
and Vanessa Nguyen.1 Hassouneh presented Havas with his AirTran
ticket to Orlando and his driver's license. Havas then asked Has-
souneh if any unknown person had asked him to carry anything on
board the airplane. Havas testified that Hassouneh responded, "Well,
there were some either Iraqi or Irani[an] . . . men outside who gave
_________________________________________________________________
1 AirTran Airways contracted Continental Airlines to check-in and load
the bags of AirTran passengers flying out of Piedmont Triad Airport.
Havas and Nguyen were employed by Continental Airlines and were
responsible for checking in passengers on AirTran flights.
2
me a bomb to put in my bag." (J.A. at 14.) Nguyen similarly testified
that she heard Hassouneh state that two men had given him a bomb
to carry. According to Havas, Hassouneh appeared"serious but kind
of lighthearted," (J.A. at 14), and was laughing and chuckling a little
when he made the statement. Havas escorted Hassouneh over to a
security area to run his bag through an x-ray machine. On the short
walk over to the security area, Havas informed Hassouneh that "it is
a federal offense to make jokes about bombs in bags," to which Has-
souneh allegedly replied, "You need to lighten up. It's just explo-
sives." (J.A. at 15.) Havas testified that she suggested to Hassouneh
that he not say anything more, but Hassouneh continued to answer,
"It's just a bomb." (J.A. at 15.)
Upon reaching the security area, Havas turned Hassouneh over to
Martha Hairston, a security officer. Security personnel ran Has-
souneh's bag through the x-ray machine, but discovered nothing that
looked like a possible bomb. Hairston testified that she said to Has-
souneh, "Sir, are you telling us that you have a bomb in that bag?"
(J.A. at 51.) According to Hairston, Hassouneh answered: "I have
nothing in there but explosives." (J.A. at 51.) Hairston then placed the
bag back in the x-ray chamber for additional examination and kept it
there. Unable to confirm that no explosive device was inside the bag,
Hairston called in the police to examine further the contents of the
bag. Hairston testified that Hassouneh was smiling during her brief
encounter with him.
A police officer with the Piedmont Airport Authority arrived at the
security area and questioned Hassouneh. According to the officer's
testimony, Hassouneh told the officer that he had been joking and
stated, "This lady must have PMS. They can't take anything here."
(J.A. at 76.)
A bomb specialist with the Greensboro Police Department
observed the bag inside the x-ray chamber and could not rule out the
possibility that it contained an explosive device. The bomb specialist
destroyed the bag, although a later inspection revealed that the bag
contained no explosives.
The Government also presented testimony from a Continental Air-
lines supervisor, James Major, concerning the disruption caused by
3
Hassouneh's exploits. Major testified that the airport's entire north
concourse was evacuated and the passengers and airplanes were
moved to the south concourse for flight departures. The north con-
course was closed down for approximately forty-five minutes to an
hour. Major also read into evidence an announcement that is played
over the airport's public address system every fifteen minutes con-
cerning a passenger's duty to control his baggage. 2
The Government further introduced evidence that signs are placed
throughout the airport advising passengers that it is a federal crime to
make false statements concerning carrying explosives aboard an air-
craft. There is also a sign built into the ticket counter that informs pas-
sengers that it is a federal crime to carry hazardous materials aboard
an aircraft.
Following the Government's presentation of its case, Hassouneh
sought to introduce character evidence regarding his reputation as a
jokester. The district court ruled that this evidence was inadmissible
because, in its view, being a jokester was not a defense to the crime,
and, thus, this evidence was irrelevant. Nonetheless, the district court
allowed Hassouneh to present this character evidence outside the
presence of the jury to preserve the record. Hassouneh presented two
witnesses in that voir dire examination who testified that they knew
Hassouneh well and that he "[told] jokes and laugh[ed] a lot" and was
a "kidder." (J.A. at 113, 115.)
_________________________________________________________________
2 The announcement provides:
May I have your attention, please. May I have your attention,
please. Federal Aviation Administration security regulations
require all passengers to maintain continual control of all carry-
on luggage. Please do not leave any baggage unattended. All
baggage is subject to inspection. Passengers are also cautioned
not to accept any baggage, package or any items from persons
unknown to you. If you are approached by any person asking
you to accept any baggage, package or other items, immediately
contact the nearest airplane representative, security screening
personnel or airport authority police department. Thank you for
your attention.
(J.A. at 73.)
4
After the voir dire examination, Hassouneh resumed presenting his
defense in open court. Hassouneh, who has lived in the United States
since 1979 and is a United States citizen, testified that he had not trav-
eled by air since 1991, when he traveled to his native Jordan. He indi-
cated that he was in the airport for about twenty minutes before he
approached the ticket counter. Hassouneh also testified that he had
not read any of the signs posted around the airport or at the ticket
counter informing passengers of the illegality of carrying destructive
devices aboard an aircraft or making false statements about such con-
duct. In describing the incident that led to his arrest, Hassouneh indi-
cated that his response that there were "a couple of terrorist[s] right
outside," (J.A. at 140), was an ill-conceived attempt at a joke. Has-
souneh explained in his testimony that when Havas asked him if any-
one had approached him to carry anything on board the aircraft he
tried to join in the humor: "When I approached that lady at the
counter, I thought she was trying to be funny and I thought, you
know, a little humor at that hour in the morning was not going to mat-
ter so much because everybody appreciates a lighthearted joke." (J.A.
at 163.) Hassouneh explained that his attempt to"laugh . . . with
them, just right along type of thing" then "escalated" to the point that
the police were called in. (J.A. at 142.) When the police arrived, Has-
souneh told Officer Harris, "Sir, I was joking here," and attempted to
show Officer Harris that there was no bomb in his bag. (J.A. at 163.)
At the close of Hassouneh's case, the district court instructed the
jury that "the Government must prove beyond a reasonable doubt that
the Defendant acted willfully and maliciously." 3 (J.A. at 214.) The
court proceeded to instruct the jury that "[t]he term `willfully' means
that the act was committed deliberately and intentionally, as con-
trasted with being made accidentally, carelessly or unintentionally.
The word `maliciously' means that the act was committed intention-
ally or with willful disregard of the likelihood that damage or injury
would result." (J.A. at 214.) Hassouneh previously had objected to the
_________________________________________________________________
3 The Government asked the district court not to instruct on the "reck-
less disregard for the safety of human life" aspect of 18 U.S.C.A. § 35(b)
(West. Supp. 1999) because it was not contained in the indictment and
asked the district court only to charge the jury on the "willfully and mali-
ciously" aspect of the statute. The district court accommodated the Gov-
ernment's request.
5
court's definition of "maliciously" in the charge conference, but failed
to object to the court's jury instruction concerning"willfully."4
The jury found Hassouneh guilty under 18 U.S.C.A.§ 35(b). Has-
souneh was sentenced to five years of federal probation and ordered
to pay restitution in the amount of $5,788.82 to the Piedmont Triad
Airport Authority and AirTran Airways. Hassouneh now appeals his
conviction and sentence.
II. 18 U.S.C.A. § 35We have referred to the statute under which Hassouneh was con-
victed, 18 U.S.C.A. § 35 (West 1969 & Supp. 1999), as the "Bomb
Hoax Act." See United States v. Omirly, 488 F.2d 353, 356 (4th Cir.
1973), abrogation recognized by United States v. Mitchell, 39 F.3d
465, 474 n.11 (4th Cir. 1994) (noting that United States v. Batchelder,
442 U.S. 114, 122 (1979) undermined the basis for the Omirly deci-
sion). In its current form, the Bomb Hoax Act provides:
§ 35. Imparting or conveying false information
(a) Whoever imparts or conveys or causes to be imparted
or conveyed false information, knowing the information to
be false, concerning an attempt or alleged attempt being
made or to be made, to do any act which would be a crime
prohibited by this chapter or chapter 97 or chapter 111 of
this title shall be subject to a civil penalty of not more than
_________________________________________________________________
4 The district court rejected Hassouneh's proposed jury instruction
regarding the definition of "willfully and maliciously." His proffered
instruction provided, in relevant part:
In order to establish the offense charged, the evidence must
show that the defendant acted willfully, that is voluntarily and
intentionally, and with knowledge that the information imparted
or conveyed was false.
Furthermore, the evidence must show that the defendant acted
maliciously. To act maliciously means to do something with an
evil purpose or motive.
(J.A. at 219.)
6
$1,000 which shall be recoverable in a civil action brought
in the name of the United States.
(b) Whoever willfully and maliciously, or with reckless
disregard for the safety of human life, imparts or conveys or
causes to be imparted or conveyed false information, know-
ing the information to be false, concerning an attempt or
alleged attempt being made or to be made, to do any act
which would be a crime prohibited by this chapter or chap-
ter 97 or chapter 111 of this title -- shall be fined under this
title, or imprisoned not more than five years, or both.
18 U.S.C.A. § 35. The statute covers the making of false statements
about placing a destructive device aboard a civil aircraft. See 18
U.S.C.A. § 32(a)(2) (West Supp. 1999) (statute in same chapter as
§ 35, prohibiting placing destructive devices aboard civil aircraft).
The Act's felony provision, § 35(b), requires that the perpetrator
act "willfully and maliciously" or "with reckless disregard for the
safety of human life." Id. Section 35(a), by contrast, contains no com-
parable scienter requirement and is thus, essentially, a strict liability
provision that subjects any person making a false statement, which
that person knows to be false, to a $1,000 civil penalty. This dual
aspect of the Act plainly evinces an intent on the part of Congress to
treat offenders differently depending upon their relative culpability in
making the false statement.
This congressional intent is further confirmed by the evolution of
the Bomb Hoax Act. Prior to 1961, 18 U.S.C. § 35 did not contain the
dual provisions set forth above. The Act was originally enacted in
1956 as a misdemeanor statute. In its initial form the Act provided:
§ 35. Imparting or conveying false information
Whoever willfully imparts or conveys or causes to be
imparted or conveyed false information, knowing the infor-
mation to be false, concerning an attempt or alleged attempt
being made or to be made, to do any act which would be a
crime prohibited by this chapter or chapter 97 or chapter 111
7
of this title -- shall be fined not more than $1,000, or
imprisoned not more than one year, or both.
See United States v. White, 475 F.2d 1228, 1231 n.4 (4th Cir. 1973)
(quoting § 35 in its original form). Notably, the Act did not include
a felony provision and did not differentiate among offenders -- it
required only that a perpetrator act willfully.
In 1961, Congress amended the Act, adding subsection (b), the fel-
ony provision, and deleting the word "willfully" from the original
1956 language, now designated subsection (a).5 These changes clearly
indicate a congressional intent to subject anyone who provides false
information of the type proscribed in the statute to punishment, but
to punish those who make such statements "willfully and maliciously,
or with reckless disregard for the safety of human life" more severely.
See 18 U.S.C.A. § 35(b). Although we are reluctant to accord much
weight to possible motivations for Congress's 1961 amendments, we
note that prior to amending the Act, Congress received a recommen-
dation from the United States Attorney General asking for the very
changes Congress ultimately enacted. As we explained in detail in our
opinion in United States v. White:
The 1961 amendments were requested by the Justice
Department in an Executive Communication from the Attor-
ney General of the United States to the Speaker of the
House of Representatives and reasons for the request were
assigned:
Our efforts to curb the high incidence of false
bomb reports necessarily have included the prose-
cution of people who claimed they had no inten-
tion to create any apprehension or disturbance but
_________________________________________________________________
5 The Act has been subjected to two additional minor amendments
since 1961. First, in 1965, Congress replaced § 35(a)'s fine and impris-
onment penalty with a civil penalty not to exceed $1,000. See Act of July
7, 1965, Pub. L. No. 89-64, 79 Stat. 210. Then, in 1994, Congress
removed a $5,000 fine limit from subsection (b) and allowed a fine
"under this title." See Act of Sept. 13, 1994, Pub. L. No. 103-322, 108
Stat. 2147.
8
were merely playing a practical joke. In prosecut-
ing such individuals, we have taken the position
that the word `willfully,' as used in section 35,
does not necessarily embrace any evil purpose but
comprehends merely a voluntary and conscious
imparting or conveying of the false information
with which the statute deals. However, the courts
have not uniformly adopted our position. Adding
to the judicial confusion over the applicability of
the statute in prankster cases is the disinclination
on the part of jurors to accept our position, result-
ing in undue acquittals in such cases.
To clarify the statute, and to render it more
effective, I submit to the Congress a bill which
would make it a felony for one to convey a false
report willfully and maliciously, or with reckless
disregard for the safety of human life, and a misde-
meanor to do so with knowledge of its false char-
acter even though without malice or reckless
disregard for human life. Such a statute would
clearly show the congressional intention to make
it a criminal offense to give false reports even
without an evil or reckless motive and would pro-
vide a more adequate penalty for those whose
actions warrant it. (1961 U.S. Code Cong. &
Admin. News, p. 3053)
The proposal of the Attorney General as to amendments
was adopted in the Senate Report accompanying the bill to
amend original § 35.
Sen. Rep. No. 1055, 87th Cong., 1st Sess., 1961; 1961
U.S. Code Cong. & Admin. News, p. 3053:
The committee believes that the proposed legis-
lation, as recommended by the Attorney General
and as approved by the House of Representatives,
is meritorious and recommends it favorably.
9
It is apparent from the foregoing quotations that the pur-
pose of the amendments was to "reshape" the statute to
eliminate the confusion which had arisen in connection with
attempts to prosecute pranksters for misdemeanors under
§ 35 as originally enacted. However, the addition of § 35(b)
was designed to make it a felony to voluntarily and con-
sciously impart or convey false information with an"evil
purpose," i. e., willfully and maliciously, or with reckless
disregard for the safety of human life.
475 F.2d at 1233 n.6 (emphasis omitted).
As we suggested in White, the history surrounding the progression
of the Bomb Hoax Act confirms that Congress intended the term "acts
willfully and maliciously" to mean "acts with an evil purpose or
motive." Furthermore, the statute seems to contemplate that many
pranksters whose poorly developed senses of humor lead them to
make statements prohibited by § 35 will be subject to the civil penalty
now contained in subsection (a), but not to the felony provision of
subsection (b).6
The Government prosecuted Hassouneh under the felony provision,
§ 35(b), and, therefore, had to prove that Hassouneh acted with an
evil or reckless motive. Because the district court, at the Govern-
ment's request, did not instruct the jury on the"reckless disregard for
the safety of human life" aspect of the statute, the jury was left with
the task of determining whether Hassouneh acted"willfully and mali-
ciously."
A. The District Court's Definition of "Maliciously"
Hassouneh's first argument is that the district court improperly
instructed the jury on the meaning of "maliciously." We generally
review jury instructions under an abuse of discretion standard. See
United States v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995). In review-
ing the adequacy of the district court's choice of jury instructions, we
_________________________________________________________________
6 We do not suggest that a prankster or jokester could not be prosecuted
under § 35(b); we simply note that oftentimes such perpetrators will not
possess an evil purpose or motive.
10
"accord the District Court much discretion and will not reverse pro-
vided that the instructions, taken as a whole, adequately state the con-
trolling law." Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994).
The district court rejected Hassouneh's proffered instruction, which
provided that "[t]o act maliciously means to do something with an
evil purpose or motive," (J.A. at 219), and instead charged the jury
that "`maliciously' means that the act was committed intentionally or
with willful disregard of the likelihood that damage or injury would
result," (J.A. at 214). The district court's instruction thus allowed the
jury to convict Hassouneh under § 35(b) if it found that Hassouneh
had acted "intentionally" in making the false statement.7
In so instructing the jury, the district court appears to have bor-
rowed its definition of "maliciously" from an Eighth Circuit case. See
United States v. Sweet, 985 F.2d 443, 445 (8th Cir. 1993).8 In Sweet,
the Eighth Circuit upheld a district court's instruction concerning the
meaning of "maliciously," as used in § 35(b), that defined the word
as "an intent to vex, annoy, or injure another or an intent to do a
wrongful act. A defendant acts maliciously if she acts intentionally or
with willful disregard of the likelihood that damage or injury will
result." Id. The Eighth Circuit rejected the appellant's argument that
the definition needed also to include an "evil motive or purpose" com-
ponent. See id.
We recognize that we have cited Sweet's definition of "mali-
ciously," which is consistent with the common law definition, with
approval in another context. See United States v. Gullett, 75 F.3d 941,
947 (4th Cir. 1996) (considering the definition of"maliciously" as
used in 18 U.S.C. § 844(i)). In Gullet, however, we cautioned that we
would "not adopt the common-law meaning of the term if there are
`grounds for inferring any affirmative instruction from Congress' to
_________________________________________________________________
7 Because the instruction defined"maliciously" as either "intentionally
or with willful disregard of the likelihood that damage or injury would
result," (J.A. at 214 (emphasis added)), the jury could have based its
decision completely upon Hassouneh's intentional action.
8 Cases construing § 35(b) have been sparse and, prior to today, no
Court of Appeals other than the Eighth Circuit has considered the proper
definition of the term "maliciously" as used in this statute.
11
define it otherwise." Id. (quoting Morissette v. United States, 342 U.S.
246, 273 (1952)).
Two primary considerations counsel in favor of declining to apply
the portion of Sweet's definition of "maliciously" that the district
court chose to apply in this case. First, the district court borrowed
only a portion of the Sweet definition and failed to include the added
instruction that "maliciously" means "an intent to vex, annoy, or
injure another or an intent to do a wrongful act." Sweet, 985 F.2d at
445. Although we do not reach the question of whether such an added
instruction would have been adequate, we note that its omission was
problematic and distinguishes this case from Sweet. Second, and more
important to our decision today, there are considerable grounds for
inferring that Congress intended a meaning of "maliciously" different
from the common law definition. The clear evolution of the Bomb
Hoax Act demonstrates that Congress sought to provide two separate
penalties for those who conveyed false information about carrying a
bomb aboard a civil aircraft: (a) a misdemeanor, later amended to a
civil fine of up to $1,000, for anyone who made such a statement, as
long as they knew it was false; and (b) a felony for those who acted
with some kind of evil or reckless motive in making such a statement,
provided that they too knew it was false. This dual feature of § 35
indicates that the insertion of the words "willfully and maliciously"
in subsection (b) is intended to differentiate it from subsection (a).
Moreover, if "maliciously" simply meant "intentionally," there would
seem to be a redundancy between § 35(a) and§ 35(b). We cannot
think of a circumstance in which one could violate§ 35(a)
unintentionally because when one "imparts or conveys or causes to be
imparted or conveyed false information, knowing the information to
be false," one must act intentionally.
We hold that in light of the dual aspect of § 35's provisions and the
readily apparent impetus for the congressional amendments that cre-
ated this bifurcation, the jury instruction defining the word "mali-
ciously" as "intentionally or with willful disregard of the likelihood
that damage or injury would result" did not adequately state the con-
trolling law. We therefore vacate Hassouneh's conviction and sen-
tence and remand the case for a new trial. We note that Hassouneh's
proposed instruction, which incorporated an "evil purpose or motive"
component, more accurately reflects the proper legal standard neces-
12
sary to convict a person of acting "maliciously" under § 35(b). We
also note that other instructions may be equally capable of properly
directing the jury on the meaning of "maliciously" under the Act.
B. Character Evidence of Hassouneh's Reputation for Joking
The district court prohibited Hassouneh from presenting evidence
of his reputation as a prankster because it did not believe that such
evidence was relevant to Hassouneh's defense. We review the district
court's decision to admit or exclude evidence under an abuse of dis-
cretion standard. See United States v. Bostian , 59 F.3d 474, 480 (4th
Cir. 1995).
Because the Government was here required to prove that Has-
souneh acted with some type of evil purpose or motive, as discussed
above, Hassouneh's argument that his false statements were made in
jest is relevant to the extent that his joking negates a finding that he
acted maliciously. See Fed. R. Evid. 401. When Hassouneh sought to
present evidence of his reputation for jocularity, therefore, the district
court erred in excluding this testimony based upon its determination
that it lacked relevancy. See Fed. R. Evid. 405(a). We find that this
error constituted an abuse of discretion in this case and on remand the
district court should allow Hassouneh to present this evidence if he
again seeks to introduce it.
C. The District Court's Definition of "Willfully"
Hassouneh also challenges the district court's jury instruction con-
cerning the proper definition of the term "willfully," claiming that
here, too, Congress intended that the word's meaning include some
type of evil purpose. Hassouneh failed to object to the court's instruc-
tion on this ground, and we thus review the court's instruction for
plain error. See United States v. David, 83 F.3d 638, 640 (4th Cir.
1996).
The district court defined "willfully" as"deliberately and intention-
ally, as contrasted with being made accidentally, carelessly or unin-
tentional." (J.A. at 214.) We find that this instruction was adequate.
First, Hassouneh's own proposed jury instruction was virtually indis-
13
tinguishable, defining "willfully" as "voluntarily and intentionally."
(J.A. at 219.) Second, in the context of 18 U.S.C.§ 1001, we have
upheld a charge nearly identical to the one the district court gave here
concerning the meaning of willfully. See United States v. Daughtry,
48 F.3d 829, 830-31 (4th Cir.), vacated on other grounds, 516 U.S.
984 (1995), on remand, 91 F.3d 675 (4th Cir. 1996). Finally, unlike
the term "maliciously," the term "willfully" existed in § 35 in its origi-
nal, pre-amended form, which clearly did not require any showing of
an evil purpose. Moving the word "willfully" into subsection (b) did
not create the needed showing of an evil purpose-- bifurcating the
statute into two provisions with different penalties and inserting the
word "maliciously" in the felony provision generated this enhanced
scienter requirement. We thus hold that the district court did not com-
mit plain error in omitting an "evil purpose" component from its defi-
nition of "willfully."
D. The Testimony of Major
In addition to the claims addressed above, Hassouneh argues that
the district court further abused its discretion in two of its other evi-
dentiary rulings. First, Hassouneh asserts that the district court's
admission of evidence concerning the disruption his antics caused in
the airport was improper under Federal Rule of Evidence 403.9 Sec-
ond, he contends that the district court erred in allowing Major to read
into evidence the announcement that is played over the airport's pub-
lic address system every fifteen minutes when there was no showing
that Hassouneh heard the announcement.
"We . . . review a district court's admission of evidence over a Rule
403 objection under a broadly deferential standard," and will not
overturn a district court's ruling in the absence of"the most extraordi-
nary circumstances" in which the court's "discretion has been plainly
abused." United States v. Love, 134 F.3d 595, 603 (4th Cir.), cert.
denied, Sheppard v. United States, 118 S. Ct. 2332 (1998) (internal
_________________________________________________________________
9 Federal Rule of Evidence 403 provides: "Although relevant, evidence
may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless pre-
sentation of cumulative evidence."
14
quotation marks omitted). We also review the district court's evidenti-
ary ruling to allow Major to read the public address announcement
into evidence under an abuse of discretion standard. See United States
v. Bostian, 59 F.3d 474, 480 (4th Cir. 1995). We cannot say that the
district court abused its discretion in either of these evidentiary situa-
tions.
Evidence of the disruption caused by Hassouneh's shenanigans
might have had some relevance to a finding of whether Hassouneh
acted "with willful disregard of the likelihood that damage or injury
would result," in accordance with the district court's partial definition
of the term "maliciously." (J.A. at 214.) It is highly unlikely that the
probative value of this evidence was substantially outweighed by its
potentially prejudicial effect. In light of our decision to remand this
case based in part on the incorrectness of the court's jury instruction
defining "maliciously," however, we need not dwell on whether the
admission of this evidence was an abuse of discretion.
As for Hassouneh's argument that the public address announce-
ment should not have been read into evidence, we find his contention
to be without merit. Hassouneh testified that he had been in the air-
port for about twenty minutes before he approached the ticket
counter. The announcement was read over the public address system
every fifteen minutes. This evidence suggests that Hassouneh may
have heard a warning not to accept any items from unknown persons,
which could lead to a jury finding that he acted maliciously when he
subsequently stated that he had been given a bomb. The district court
therefore did not abuse its discretion in admitting this testimony.
III. CONCLUSION
We hold that the district court erred in instructing the jury on the
meaning of the term "maliciously" in 18 U.S.C.A. § 35(b) (West
Supp. 1999). We also conclude that the district court's ruling to
exclude evidence of Hassouneh's reputation as a practical joker was
in error. We therefore vacate Hassouneh's conviction and sentence
and remand this case for a new trial.
VACATED AND REMANDED
15