Leon Bearden v. United States , 304 F.2d 532 ( 1962 )

JOSEPH C. HUTCHESON, Jr., Circuit Judge.

Appellant, pleading not guilty, was tried before a jury on Counts One, Three and Six on a six-count indictment, the remaining counts having been dismissed. Count One charged appellant with having knowingly transported "in interstate commerce * * * [certain persons] whom he had unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted and carried away and held for the purpose of stealing an aircraft and transporting it to the Republic of Cuba and for the further purpose of securing the [his] transportation to the Republic of Cuba”, in violation of 18 U.S.C. § 1201. Count Three charged that appellant "transported and caused to be transported, in interstate commerce, an aircraft * * * ”, knowing it to have been stolen, in violation of 18 U.S.C. § 2 and 18 U.S.C. § 2312. The sixth count charged appellant with obstruction of and attempt to obstruct commerce by extortion, in violation of 18 U.S.C. § 1951.

The jury found appellant guilty on each count, and he was sentenced to imprisonment for life on the first count, for five years on the third count, and for twenty years on the sixth count, all sentences to run concurrently. This appeal in forma pauperis followed.

The facts of the case are bizarre. On August 3, 1961, appellant and his son boarded a Continental Airlines Boeing 707 aircraft in Phoenix, Arizona. Each had purchased a ticket to El Paso, Texas, under an assumed name. The flight had originated in Los Angeles, California and was scheduled to proceed to Houston, Texas, with intermediate stops in Phoenix, El Paso, and San Antonio, Texas. While the airplane was in flight over the state of New Mexico, en route to El Paso, appellant and son, with pistols brandished, announced to the pilot and crew that they were taking command of the aircraft, ordered the pilot to make a forty-five degree right turn (which would have placed the plane across the immediately adjacent Mexican border), and declared it to be their intention to take the aircraft and its passengers to Mexico, and from thence to Cuba.¹ There is, evidence in the record indicating that a slight turn was perhaps made, but in any event the normal course was almost immediately resumed. The crew was able to convince appellant that the amount of fuel aboard was insufficient to permit a safe flight to Monterrey, Mexico, so he permitted the flight to proceed to El Paso, with the intention of refueling there and then proceeding to Cuba. While the aircraft was still in flight, ground authorities were made aware of the situation aboard it by radio. After a landing at El Paso was accomplished, refueling operations were purposely delayed at the direction of law enforcement authorities; during the period of delay, the crew members were held aboard the plane at pistol point, as hostages, although appellant allowed most of the passengers to deplane. Climatically, appellant order a takeoff notwithstanding the incomplete fueling operations, only to have his escape aborted when a fusillade of bullets, fired by police officers who were pursuing the departing aircraft down the runway in automobiles, pierced its tires and engines. Subsequently, several officers boarded the plane to negotiate with appellant for his surrender, the crew escaped, and appellant was subdued by force. All of the events above described were given widespread local and national television, radio, and newspaper coverage. Television and radio broadcasts covering the events subsequent to landing emanated directly from the airport, upon which many local residents, attracted by the television and radio reports, converged to witness the events in person.

Error is first assigned to the refusal of the trial court to grant a change of venue, requested on the ground that the de-semination by the news media of publicity regarding appellant’s activities was so widespread as to preclude the possibility of obtaining a fair trial in the El Paso division of the Western District of Texas.

The trial judge properly concluded that the mere existence of widespread publicity is not, in and of itself, sufficient to require a change of venue, but that the determinative factor is whether a jury which can reach a verdict uninfluenced by such publicity may be selected in the area. The prospective jurors were carefully examined by the trial judge. This examination revealed that most, if not all, of the jury panel had viewed the events which took place at the airport, either in person or by means of television coverage. Of two jurors who had actually been present at the airport, one stated that he would nonetheless be able to return a verdict based on the evidence and the law, while the other was excused because of the fixed opinion he had formed. Two television viewers were likewise excused. The remainder of the jurors on the panel indicated that they could reach a verdict on the evidence and the law. The record does not reveal, nor does appellant claim, that an objectionable juror was seated. The discretion of the trial court, to which the motion for change of venue is directed, was not abused in the case at bar, but was carefully exercised with the utmost regard for the interests of the appellant.

At the close of the government’s case, and later, at the close of the entire case, appellant moved for a judgment of acquittal on all three counts, on the ground that there was no evidence, or alternatively, that the evidence was insufficient as a matter of law, to support convictions on those counts. Both motions were overruled. While appellant assigns error to the action of the trial court with respect to all three counts, serious objection is levelled only at the denial of the motion as to the first count.

Appellant first directs our attention to the fact that the indictment, in the first count, charged that appellant “did knowingly transport * * * ”, while the third count charged that he “transported and caused to be transported * * * ”, and the sixth alleged that he “did obstruct and attempt to obstruct * * * The significance which is supposedly to be drawn from the difference in the language used in the several counts is that while the third and sixth allege that he “caused to be transported" and "attempted to obstruct”, the first alleges neither that he caused the transportation of the named individuals, nor that he attempted to transport them. Thus, it is contended, he is charged in the first count flatly and solely with “transporting”, and the evidence does not show that he transported anyone.

The first count was couched in the language of 18 U.S.C. § 1201.² The third incorporated the language of both 18 U.S.C. § 2312³ and 18 U.S.C. § 2⁴ As the Reviser’s Note to the latter section indicates, “* * * Section 2(b) is added to permit the deletion from many sections throughout the revision of such phrases as ‘causes or procures’ * * Similarly, the Reviser’s Note to 18 U.S.C. § 1201 states that “ * * * Reference to persons aiding, abetting, or causing was omitted as unnecessary because such persons are made principals by section 22 [sic] of this title.”, and the Note to 18 U.S.C. § 2312 stated that “ * * • * Reference to persons causing or procuring was omitted as unnecessary in view of definition of ‘principal’ in section 2 of this title.” It is thus apparent that the allegations in the third count, that appellant caused to be transported, was wholly superfluous, and that the difference in the language used in the first and third counts was immaterial. Appellant could have been convicted of the offense alleged in the first count as well upon proof that he caused transportation of the named victims as that he actually transported them himself, regardless of the presence or absence of the word “caused” in the count. See Pereira v. United States, 202 F.2d 830 (5th Cir., 1953), and authorities there cited.

Turning to the question of sufficiency of the evidence to sustain the conviction, it appears that the case at bar is one of first impression, in two repects: it is the only one we have been able to discover wherein the transportation of unlawfully seized victims was accomplished by means of an aircraft, and it is likewise the only one we have found in which the unlawfully seized victims were transported to precisely that place which would have been their destination even in the absence of transportation by their kidnaper. We have concluded that neither of these novel circumstances takes the case outside the purview of the statute.

The act prohibited by section 1201 is not, and indeed probably could not constitutionally be, unlawful seizure, etc. alone. What is prohibited is the knowing transportation of persons who have theretofore been “unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise.” On the evidence in this record, there can be no doubt at all that the individuals named in the first count, the Captain, First Officer, and Second Officer of the aircraft, fell within the category of persons unlawfully seized and confined, beginning at the moment appellant appeared in the cockpit, aimed a pistol at them, and assumed command. The only remaining question, therefore, is whether they were transported by appellant in interstate commerce. We likewise have no doubt that they were. From the instant that appellant assumed command, acts performed by the plane’s officers were not volitional as to them, but were the results of the will of the appellant: at that point in time, the former character of a routine air voyage under the exclusive control of the crew was terminated by appellant’s act. A new aspect was taken on. That aspect may be characterized as “transportation” by appellant, within the meaning of the statute. It matters not that at a time prior to their seizure and confinement by appellant his victims had fully intended to proceed to El Paso, the place that ultimately proved to also be appellant’s amended choice. For at that earlier time their intentions were formed with regard to circumstances existing at that time. With their seizure by appellant, however, the former intentions of the three officers were rendered totally ineffectual. Thereafter, it was solely the intention of appellant which controlled the course of the aircraft — it was his decision to proceed to El Paso which resulted in the later landing there. Nor is it important that it was not appellant himself who had his hand upon the controls of the craft. It was his will which in fact controlled its movement through the air. In this respect, the facts of the case at bar are no different in their legal effect than those presented to the courts in Brooks v. United States, 199 F.2d 337 (4th Cir., 1952); United States v. McGrady, 191 F.2d 336, 829 (7th Cir., 1951), cert. denied. Paulding v. United States, 342 U.S. 911, 72 S.Ct. 305, 96 L.Ed. 681; or Wheatley v. United States, 159 F.2d 599 (4th Cir., 1946). Moreover, were we to approach the case from the view that appellant “caused” the pilot of the aircraft to transport himself and the other victims, we would reach the same result. See United States v. Leggett, 269 F.2d 35 (7th Cir., 1959), cert. denied 361 U.S. 901, 80 S.Ct. 209, 4 L.Ed.2d 156, reh. denied 361 U.S. 941, 80 S.Ct. 367, 4 L.Ed.2d 361; Pereira v. United States, supra.

A reasonable minded jury might properly have accepted, and in the case at bar properly did accept, the relevant evidence presented to it as adequate to support the conclusion that appellant was guilty of each of the offenses for which he was tried. The motions for judgment of acquittal were, therefore, properly denied. Riggs v. United States, 280 F.2d 949 (5th Cir., 1960).

The judgment is

Affirmed.

1 . Appellant’s son, Cody Bearden, pleaded guilty to interstate transportation of a stolen aircraft, 18 U.S.C. § 2312, and obstruction of interstate commerce, 18 U.S.C. § 1951, pursuant to the Juvenile Delinquency Act, 18 XT.S.C. § 5031 et seq. '

2 . “(a) Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished * *

3 . “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined * * * or imprisoned * *

4 .“(a) Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

“(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”