United States v. Persing ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4780
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARL WARREN PERSING,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:06-cr-00261-F-1)
Submitted: November 12, 2008 Decided: November 25, 2008
Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Carl Warren Persing of interfering
with the performance of the duties of a flight attendant, in
violation of 49 U.S.C. § 46504 (2000). On appeal, Persing
challenges his conviction on several grounds. Finding no
reversible error, we affirm.
Persing first challenges the district court’s denial
of his motions to dismiss the indictment. Although he contends
that his speedy trial rights were violated, we conclude that the
district court did not violate the Speedy Trial Act, 18 U.S.C.
§§ 3161-3174 (2006), amended by Judicial Administration and
Technical Amendments of 2008, Pub. L. No. 110-406, 122 Stat.
4291, 4294, because the court properly excluded from the speedy
trial calculation the continuances sought by Persing and his co-
defendant. See 18 U.S.C. § 3161(h)(6), (h)(7)(A). Nor were
Persing’s Sixth Amendment speedy trial rights violated. United
States v. Woolfolk, 399 F.3d 590, 597-98 (4th Cir. 2005)
(providing standard and noting general rule that at least eight-
month delay will trigger Sixth Amendment inquiry).
Next, Persing contends that the district court erred
in denying his motion to dismiss the indictment based upon lack
of venue. Our review of the record leads us to conclude that
the indictment alleged facts sufficient to establish venue in
the district court. Moreover, at trial, the Government proved
2
venue by a preponderance of the evidence. See United States v.
Johnson, 510 F.3d 521, 524 (4th Cir. 2007) (providing standard);
United States v. Hall, 691 F.2d 48, 50 (1st Cir. 1982).
Persing also asserts on appeal that the district court
erred by rejecting his claims that the indictment failed to
allege that he intended to intimidate the flight attendant and,
therefore, did not allege a criminal offense. However, § 46504
does not require specific intent. United States v. Grossman,
131 F.3d 1449, 1451-52 (11th Cir. 1997) (holding “that § 46504
does not require any showing of specific intent; instead, it
defines a general intent crime,” and collecting cases from other
circuits). Because the indictment filed against Persing alleged
the essential elements of the offense, see United State v.
Naghani, 361 F.3d 1255, 1262 (9th Cir. 2004) (discussing
elements), and tracked the statutory language, we find that the
indictment is valid. See United States v. Wills, 346 F.3d 476,
489 (4th Cir. 2003).
Persing contends that the district court erred by
denying his motion to dismiss the indictment because § 46504 is
vague and overbroad and “inhibits the exercise of free speech
protected by the First Amendment.” Our review of the record
leads us to conclude that Persing’s comments to the flight
attendant amounted to true threats, which are not protected by
the First Amendment. Watts v. United States, 394 U.S. 705, 707
3
(1969); see R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)
(“[T]hreats of violence are outside the First Amendment
. . . .”). We also agree with the district court that § 46504
is not void on its face or overbroad. See United State v.
Hicks, 980 F.2d 963, 969-70, 972 (5th Cir. 1992) (rejecting
claims that predecessor statute was facially overbroad and
vague). Turning to Persing’s claim that § 46504 is
unconstitutional as applied to him, we find that the statute
provided fair notice of the prohibited conduct. Although
Persing contends that the statute did not clearly define what
was required for intimidation and interference, “the meaning of
the words used to describe the [impermissible] conduct can be
ascertained fairly by reference to judicial decisions, common
law, dictionaries, and the words themselves because they possess
a common and generally accepted meaning.” United States v.
Eckhardt, 466 F.3d 938, 943-44 (11th Cir. 2006) (holding that 47
U.S.C. § 223(a)(1)(C) (2000), which prohibits anonymously making
annoying, abusive, harassing, or threatening telephone calls,
provides adequate notice of unlawful conduct); Hicks, 980 F.2d
at 971-72 (rejecting as-applied challenge to § 46504’s
predecessor statute and finding that statute was “narrowly
tailored” where “only intimidating acts or words that actually
interfere with a crew member’s duties are penalized”).
4
Persing also asserts on appeal that the district court
constructively amended the indictment by failing to require the
jury to find as a fact that he knowingly interfered with the
flight. A constructive amendment occurs when the Government or
the court broadens the possible bases for conviction beyond
those charged in the indictment, which results in a “fatal
variance[] because ‘the indictment is altered to change the
elements of the offense charged, such that the defendant is
actually convicted of a crime other than that charged in the
indictment.’” United States v. Foster, 507 F.3d 233, 242 (4th
Cir. 2007) (quoting United States v. Randall, 171 F.3d 195, 203
(4th Cir. 1999)), cert. denied, 128 S. Ct. 1690 (2008). We
conclude that there was no constructive amendment to the
indictment because the court’s instructions required the jury to
find that Persing acted knowingly, which is consistent with
§ 46504’s general intent requirement. Thus, Persing’s claim
fails.
Finally, Persing asserts that the evidence was
insufficient to convict him because there was no evidence that
the flight attendant was intimidated, that Persing intended to
intimidate the flight attendant, or that Persing knowingly
interfered with the flight attendant’s duties. This court
reviews de novo the district court’s decision to deny a motion
filed pursuant to Fed. R. Crim. P. 29. United States v. Reid,
5
523 F.3d 310, 317 (4th Cir. 2008). Where, as here, the motion
was based on a claim of insufficient evidence, “[t]he verdict of
a jury must be sustained if there is substantial evidence,
taking the view most favorable to the Government, to support
it.” Glasser v. United States, 315 U.S. 60, 80 (1942); Reid,
523 F.3d at 317. “Substantial evidence is evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond
a reasonable doubt.” Reid, 523 F.3d at 317 (internal quotation
marks and citation omitted). “[A]n appellate court’s reversal
of a conviction on grounds of insufficient evidence should be
confined to cases where the prosecution’s failure is clear.”
Foster, 507 F.3d at 244-45 (internal quotation marks and
citation omitted). With these standards in mind, we have
reviewed the trial transcript and find that the evidence was
sufficient to convict. See Naghani, 361 F.3d at 1262 (setting
forth elements of offense); United States v. Meeker, 527 F.2d
12, 15 (9th Cir. 1975) (interpreting predecessor statute to
§ 46504 and defining intimidation as “conduct and words of the
accused [that] would place an ordinary, reasonable person in
fear”).
Finding no reversible error, we affirm Persing’s
conviction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
6
before the court and argument would not aid the decisional
process.
AFFIRMED
7