USA v. Benjamin Harri

Filing

FILED OPINION (SUSAN P. GRABER, SANDRA S. IKUTA and ANDREW D. HURWITZ) AFFIRMED. Judge: SPG Authoring, Judge: SSI , Judge: ADH . FILED AND ENTERED JUDGMENT. [8426241]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellee,

No. 11-50503

v.

D.C. No.
2:11-cr-00414SJO-1

BENJAMIN HARRIS,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted November 6, 2012*
Pasadena, California
Filed December 5, 2012
Before: Susan P. Graber, Sandra S. Ikuta, and
Andrew D. Hurwitz, Circuit Judges.
Opinion by Judge Graber

*

The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).

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SUMMARY**

Criminal Law
Affirming a conviction, the panel held that 49 U.S.C.
§ 46505, which prohibits carrying a “concealed dangerous
weapon” on aircraft, is not unconstitutionally vague as
applied to an airport employee who sneaks a pocketknife with
a blade that is almost two-and-a-half inches long past a
security checkpoint and then gives it to a passenger who takes
it aboard an airplane.

COUNSEL
William S. Harris, Law Offices of William S. Harris, South
Pasadena, California, for Defendant-Appellant.
Melissa Mills, Assistant United States Attorney, National
Security Section, Los Angeles, California, for PlaintiffAppellee.

OPINION
GRABER, Circuit Judge:
The question presented is whether 49 U.S.C. § 46505,
which prohibits carrying a “concealed dangerous weapon” on

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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aircraft, is unconstitutionally vague as applied to an airport
employee who sneaks a pocketknife with a blade that is
almost two-and-a-half inches long past a security checkpoint
and then gives it to a passenger who takes it aboard an
airplane. Reviewing de novo, United States v. Zhi Yong Guo,
634 F.3d 1119, 1121 (9th Cir.), cert. denied, 131 S. Ct. 3041
(2011), we hold that the statute is not unconstitutionally
vague as applied and, therefore, we affirm.
On January 30, 2011, the Transportation Security
Administration (“TSA”) prevented Edward Lee Henderson,
a JetBlue Airways passenger, from passing through a security
checkpoint at the Long Beach, California, airport because he
had a pocketknife in his carry-on bag. The pocketknife had
two blades, the longer of which measured slightly less than
two-and-a-half inches. Here is a photograph of the knife:

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TSA personnel told Henderson to return to the ticketing
counter so that he could place the knife into one of his
checked bags. Henderson went first to the curbside check-in,
where he had checked his luggage, but was directed to the
JetBlue ticketing counter. Defendant, Benjamin Harris, an
Airport Bags employee with a Security Identification Display
Area badge, accompanied Henderson from the curbside
check-in to the ticketing counter.
At the ticketing counter, Alem Habtay, a JetBlue
employee, told Henderson that it was too close to the flight’s
boarding time to place the pocketknife in his previously
checked luggage but that he could check the knife separately
for $30. Henderson said that he did not have $30. Defendant
then suggested to Henderson that he might be able to assist
him with his problem, and together the two men walked away
from the counter and out of the ticketing area.
Outside the ticketing area, the two men agreed that
Defendant would help Henderson get the pocketknife past the
TSA checkpoint. Henderson gave Defendant the pocketknife
so that Henderson could go through the TSA checkpoint.
Defendant’s security clearance allowed him to use his badge
and PIN number to enter the boarding area, with the knife,
without passing through a TSA checkpoint. The two men
met in a restroom, where Defendant returned the knife.
Several signs in and around the terminal cautioned that
“knives” were prohibited in the secured portion of the airport.
Meanwhile, Habtay suspected that Defendant might try to
use his badge to take the pocketknife past security. She told
a co-worker of her suspicion; the co-worker, in turn, told the
JetBlue Station Manager on duty, Greg Garcia. Habtay then
spoke directly with Garcia, whereupon the two went to the

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boarding area to locate Henderson. Unable to find him, they
boarded the plane, and Habtay identified Henderson.
Garcia approached Henderson and asked for the knife.
Henderson initially denied having a knife. But, when Garcia
said that he would have Henderson removed from the plane
if necessary, Henderson handed the knife to Garcia.
Henderson remained on the flight.
Garcia notified various security personnel of the incident.
During an interview with a Long Beach police officer,
Defendant admitted his role in the foregoing events.
A grand jury indicted Defendant for conspiracy to carry
a concealed dangerous weapon on an aircraft, a violation of
49 U.S.C. § 46505(e), and for aiding and abetting the carrying
of a concealed dangerous weapon on an aircraft, a violation
of 18 U.S.C. § 2 and 49 U.S.C. § 46505(b)(1).1 Defendant

1

Title 49 U.S.C. § 46505 states in relevant part:
(b) An individual shall be fined under title 18, imprisoned for not
more than 10 years, or both, if the individual—
(1) when on, or attempting to get on, an aircraft in, or intended
for operation in, air transportation or intrastate air transportation,
has on or about the individual or the property of the individual a
concealed dangerous weapon that is or would be accessible to the
individual in flight[.]
...
(e) If two or more persons conspire to violate subsection (b) . . .,
and one or more of such persons do any act to effect the object
of the conspiracy, each of the parties to such conspiracy shall be
punished as provided in such subsection.

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moved to dismiss the indictment, arguing that 49 U.S.C.
§ 46505’s prohibition of “dangerous weapon[s]” on aircraft
is unconstitutionally vague as applied. The district court
denied the motion. Defendant entered a conditional guilty
plea, reserving his right to appeal the denial of his motion to
dismiss. He timely appeals.
“A criminal statute is void for vagueness if it is not
sufficiently clear to provide guidance to citizens concerning
how they can avoid violating it and to provide authorities
with principles governing enforcement.” Zhi Yong Guo,
634 F.3d at 1121 (internal quotation marks omitted). In a
facial challenge, a statute is unconstitutionally vague if it
“‘fails to provide a person of ordinary intelligence fair notice
of what is prohibited, or is so standardless that it authorizes
or encourages seriously discriminatory enforcement.’”
United States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir.
2009) (quoting United States v. Williams, 553 U.S. 285, 304
(2008)).
In an as-applied challenge, a statute is
unconstitutionally vague if it “fail[s] to put a defendant on
notice that his conduct was criminal.” Id. “For statutes . . .
involving criminal sanctions the requirement for clarity is
enhanced.” Id. (internal quotation marks omitted).
“[V]agueness challenges to statutes which do not involve
First Amendment freedoms must be examined in the light of
the facts of the case at hand.” United States v. Mazurie,
419 U.S. 544, 550 (1975). Thus, Defendant’s as-applied
challenge to 49 U.S.C. § 46505 turns on whether the statute
provided adequate notice to him that his particular conduct
was proscribed. Defendant knew that this particular knife had
been turned back by TSA. Moreover, there were signs in and
around the terminal that prohibited all knives. It should have
been clear to him that § 46505’s prohibition of “dangerous

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weapon[s]” includes a pocketknife with a blade almost twoand-a-half inches long. Therefore, even considering the
enhanced requirement of clarity for criminal statutes, we
conclude that the statute gave Defendant adequate notice that
his conduct was prohibited.2
The only decision of which we are aware that addresses
an as-applied vagueness challenge to 49 U.S.C. § 46505
supports the conclusion we reach here. In United States v.
Hedrick, 207 F. Supp. 2d 710, 712 (S.D. Ohio 2002), a
passenger flew on an airplane “wearing a belt buckle
equipped with a knife that had a three-inch blade.” The court
held that § 46505 is not void for vagueness, because “the
common sense definition of ‘dangerous weapon’ provides
sufficient notice regarding the conduct that is prohibited . . .
[and] include[s] a knife with a three-inch blade.” Id. at 714.
We agree. Defendant’s attempt to distinguish Hedrick by the
length of the knife’s blade fails. The difference between a
three-inch blade and a blade of just under two-and-a-half
inches does not make the statute vague as applied to
Defendant, especially considering that he, unlike the
defendant in Hedrick, was an airport employee.
Our two prior decisions interpreting the scope of
§ 46505’s predecessor statute, 49 U.S.C. § 1472(l) (1964),
also support our holding. The earlier statute prohibited
concealed “deadly or dangerous weapon[s]” on aircraft. Id.
In United States v. Wallace, 800 F.2d 1509, 1512–13 (9th
Cir. 1986), we held that a stun gun, as a matter of law, is a

2

Contrary to Defendant’s argument, § 46505(b)(1)’s lack of a scienter
element does not render it unconstitutionally vague. See Hotel & Motel
Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 973 (9th Cir. 2003).

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dangerous weapon aboard an aircraft. We reasoned that stun
guns can cause serious permanent injury to the eyes and can
incapacitate many people at once, that even temporary
incapacitation of key personnel on an aircraft is dangerous,
and that “display of the gun is likely to provoke fear in the
surrounding passengers creating ‘an immediate danger that a
violent response will ensue.’” Id. at 1513 (quoting
McLaughlin v. United States, 476 U.S. 16, 18 (1986)); see
also McLaughlin, 476 U.S. at 17 (holding that the immediate
danger of a violent response to display of an unloaded firearm
is “independently sufficient” to support the conclusion that an
unloaded firearm is a “dangerous weapon” within the
meaning of the federal bank robbery statute).
In United States v. Dishman, 486 F.2d 727, 732 (9th Cir.
1973), we reversed the conviction of a man who attempted to
board an airplane with a .22 caliber starter pistol. The pistol
was incapable of firing bullets because “[t]he barrel was
solidly plugged near the end and the cylinder cartridge
retaining holes or bores were half filled with metal and
incapable of receiving and holding cartridges.” Id. at 729.
We defined “deadly and dangerous weapon” as “one which
in its intended or readily adaptable use is likely to produce
death or serious injury.” Id. at 730 (emphasis omitted)
(quoting 94 C.J.S. Weapons § 6(c), p. 489). Because “[i]t
would take a machinist considerable time with [a] metal
cutting drill and saw to convert [the starter pistol] into any
semblance of an operating weapon,” the starter pistol was
merely an “inert object.”3 Id. at 732.

3

T his court decided Dishman before the Supreme Court held in
McLaughlin that the immediate danger of a violent response to the display
of an unloaded gun is sufficient to make that gun a “dangerous weapon”
under the federal bank robbery statute.

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Like the stun gun in Wallace, a pocketknife can inflict, at
a minimum, permanent injury. It can incapacitate, at least
temporarily, key personnel on an aircraft. In the confines of
an aircraft, its display has the potential to provoke a violent
response. Unlike the starter pistol in Dishman, the
pocketknife at issue here is “readily adaptable” to a
dangerous use, even if it is not intended for that use. No
alteration is required to enable it to inflict serious bodily
harm. Therefore, Wallace and Dishman suggest that a
pocketknife with a blade of just under two-and-a-half inches
is a “dangerous weapon” aboard an aircraft.
Finally, Defendant argues that, because 18 U.S.C.
§ 930(g)(2) and 18 U.S.C. § 1992(d)(2) make specific
reference to “a pocket knife with a blade of less than 2 ½
inches in length,” we must read § 46505, which lacks a
similar reference, as not including such a pocketknife in the
definition of “dangerous weapon.”4 We disagree. We see no

4

Title 18 U.S.C. § 930(g)(2) provides:
The term “dangerous weapon” means a weapon, device,
instrument, material, or substance, animate or inanimate, that is
used for, or is readily capable of, causing death or serious bodily
injury, except that such term does not include a pocket knife with
a blade of less than 2 1/2 inches in length.

(Emphasis added.)
Title 18 U.S.C. § 1992(d)(2) provides:
[T]he term “dangerous weapon” means a weapon, device,
instrument, material, or substance, animate or inanimate, that is
used for, or is readily capable of, causing death or serious bodily

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indication that Congress intended “dangerous weapon” in
§ 46505 to be interpreted by reference to statutes enacted at
different times to address different subjects. Moreover,
nothing in § 930(g)(2) or § 1992(d)(2) is contrary to our
interpretation of § 46505. By stating that the term
“dangerous weapon” in § 930(g)(2) “does not include a
pocket knife with a blade of less than 2 ½ inches in length,”
Congress implied that such knives would be considered
dangerous weapons but for their express exclusion. And
nothing in § 1992(d)(2) detracts from this interpretation, as
that statute merely confirms that the term “dangerous
weapon” includes such a pocketknife.
In sum, we conclude that 49 U.S.C. § 46505 gave
adequate notice to Defendant that a pocketknife with a blade
of slightly less than two-and-a-half inches is prohibited
aboard an aircraft. Therefore, we hold that the statute is not
unconstitutionally vague as applied.
AFFIRMED.

injury, including a pocket knife with a blade of less than 2 ½
inches in length . . . .
(Emphasis added.)