US v. Carl Persing

Filing 920081125

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 challenges of 49 U.S.C. § 46504 on (2000). On appeal, Persing no

his

conviction

several

grounds.

Finding

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 codefendant. See 18 U.S.C. § 3161(h)(6), (h)(7)(A). Nor were United 2005)

Persing's Sixth Amendment speedy trial rights violated. States v. Woolfolk, 399 F.3d 590, 597-98 (4th Cir.

(providing standard and noting general rule that at least eightmonth 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. does not require specific intent. However, § 46504

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). the Because the indictment filed against Persing alleged elements F.3d of the 1262 offense, (9th see United 2004) State v.

essential 361

Naghani,

1255,

Cir.

(discussing

elements), and tracked the statutory language, we find that the indictment is valid. 489 (4th Cir. 2003). Persing contends that the district court erred by See United States v. Wills, 346 F.3d 476,

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." leads us to conclude that Persing's Our review of the record 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 See United State v. Cir. 1992) (rejecting and is

is not void on its face or overbroad. Hicks, claims vague). 980 that F.2d 963, 969-70, 972 (5th was

predecessor Turning to

statute

facially that

overbroad § 46504

Persing's

claim

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 statute and as-applied finding challenge statute to was § 46504's "narrowly

predecessor

that

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. the A constructive amendment occurs when the Government or broadens in the possible bases which is such for conviction in a beyond "fatal the is

court

those

charged

the

indictment, indictment charged,

results

variance[] elements of

because the

`the

altered that

to

change

offense

the

defendant

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). conclude that there was no constructive amendment to We the

indictment because the court's instructions required the jury to find that Persing general acted intent knowingly, which is consistent Persing's with claim

§ 46504's fails.

requirement.

Thus,

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 interfered the with flight the attendant, or that Persing knowingly This court

flight

attendant's

duties.

reviews de novo the district court's decision to deny a motion filed pursuant to Fed. R. Crim. P. 29. 5 United States v. Reid,

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." 523 Glasser v. United States, 315 U.S. 60, 80 (1942); Reid, F.3d at 317. "Substantial of fact evidence accept is evidence as that a

reasonable

finder

could

adequate

and

sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Reid, 523 F.3d at 317 (internal quotation "[A]n appellate court's reversal

marks and citation omitted).

of a conviction on grounds of insufficient evidence should be confined to cases where the prosecution's failure is clear." Foster, citation 507 F.3d at 244-45 With (internal quotation in marks we and have

omitted).

these

standards

mind,

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 conviction. no reversible error, we affirm Persing's

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