UNITED STATES OF AMERICA,...count of interfering with a flight attendant or flight crew member, in...

U.S.C.A. NO. 17-10299

U.S.D.C. NO. 16-00207-S0M

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

vs.

WILLIAM CLARK TURNER,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii

The Honorable Susan Old Mollway, Senior United States District Judge, Presiding

District Court Case No. 16-00207 -SOM

OPENING BRIEF OF DEFENDANT-APPELLANT WILLIAM CLARK TURNER

DAVID 1. COHEN, ESQ. California Bar No. 145748 BAY AREA CRIMINAL LAWYERS, PC 300 Montgomery Street, Suite 660 San Francisco, California 94104 Telephone: (415) 398-3900 Attorneys for Defendant-Appellant William Clark Turner

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Case: 17-10299, 01/05/2018, ID: 10715383, DktEntry: 18-1, Page 1 of 75

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................... 5 ISSUES PRESENTED FOR REVIEW ................................. 10

I. INTRODUCTION ............................................ 11 A. Nature of the Case ............................................ 11

1. Jurisdiction ............................................ 11 2., Bail Status ............................................. 11

II. STATEMENT OF THE CASE .................................. 11

A. Testimony of Lena Goralska . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. Testimony of Christina Mulberry ................................ 17 C. Testimony of Robin Adams .................................... 19 D. Testimony of Captain Chris Maracchini ........................... 21 E. Testimony of Special Agent Joel Rudow .......................... 23 F. Testimony of Tamara Thompson ................................ 24 G. Testimony of Doctor William Turner ............................. 26 H. JUly Instructions and District Court's Ruling on Dr TUlner's

Motion for a Judgment of Acquittal .............................. 29

III. SUMMARY OF THE ARGUMENT ............................. 33

IV. ARGUMENT ............................................... 36

A. The District Court's Erroneous Jury Instructions Related To The Intimidation And Interference Elements of 49 U.S.C. §46504 Pelmitted The Jury To Convict Dr. Turner Without Proof Beyond A Reasonable Doubt Of Every Fact Necessary To Constitute The Charged Offense ............................................. 36

1. The District Court's Erroneously Defined The Intimidation Element For 49 U.S.C. §46504 In a Manner That Broadly Expanded Dr. Turner's Criminal Liability B~yond That Authorized By Law ...................................... 36

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TABLE OF CONTENTS

a. Standard of review ................................. 36 b. The alternative definitions of intimidation did not

accurately define intimidation or require a fear of bodily harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

c. The instructions subsumed the intimidation element into the interference element ......................... 40

d. The instructions required a finding of intimidation without requiring a reasonable flight attendant to fear bodily harm ........ . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

e. The enoneous definition of intimidation constituted plain enol' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

2. The District Court Ened In Refusing Dr. Turner's Request For An Instruction That The Intimidation Of A Flight Attendant Must Be Done Knowingly ........................ 54

a. Standard of review .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 b. The District Court enoneously declined to instruct the

jury that Dr. Turner must lmowingly intimidate the flight attendant .................................... 55

3. Dr. Turner's Trial Counsel Was Ineffective In Failing To Objection To The Alternative Definitions Of Intimidation ....... 62

a. Standard of review ................................. 62 b. Trial counsel provided ineffective assistance by

failing to object to overly broad jury instructions ......... 63

B. Retroactive Misjoinder Leading To Prejudicial Spillover Of Inadmissible Evidence Occuned After The District Court Dismissed The Pilot From The Interference With A Flight Crew Member Or Flight Attendant Count .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

1. Standard of Review ...................................... 66

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TABLE OF CONTENTS

2. The District COUli Did Not Provide The Necessary Limiting Instruction In Order To Avoid Prejudicial Spillover From The Dismissed Theory Of Liability Relating To The Pilot ........... 66

V. CONCLUSION .............................................. 73

STATEMENT OF RELATED CASES ................................. 74

CERTIFICATE OF COMPLIANCE ................................... 75

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Case Law Page(s)

Cage v. Louisiana, 498 U.S. 39 (1990) ........................................... 36

California v. Roy, 519 U.S. 2 (1996) ............................................ 37

Carter v. United States, 530 U.S. 255 (2000) .......................................... 53

Chapman v. California, 386 U.S. 18 (1967) ........................................... 55

In re Winship, 397 U.S. 358 (1970) ................................... 36,passim

Neder v. United States, 527 U.S. 1 (1999) ............................................ 50

Pattern Criminal Jury Instructions, (11 th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41, passim

Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) .................................. 62

Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011) .................................. 36

Roy v. Gomez, 81 F.3d 863 (9th Cir. 1996) .................................... 37

Strickland v. Washington, 466 U.S. 668 (1984) .......................................... 62

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Case Law Page(s)

United States v. Aguilar, 80 F.3d 329 (9th Cir. 1996) ............................. 37,passim

United States v. Alferahin, 433 F.3d 1148 (9th Cir. 2006) .................................. 49

United States v. Alsop, 479 F.2d 65 (9th Cir. 2001) ............................. 38,passim

United States v. Bibbins, 637 F.3d 1087 (9th Cir. 2011) ........................... 55,passim

United States v. Cassel, 408 F.3d 622 (9th Cir. 2005) ................................... 38

United States v. Cuozzo, 962 F .2d 945 (9th Cir. 1992) ................................... 67

United States v. Duran, 189F.3d 1071 (9thCir.1999) .................................. 67

United States v. Freter, 31 F.3d 783 (9th Cir. 1994) .................................... 49

United States v. Gaudin, 515 U.S. 506 (1995)

United States v. Hernandez,

45, passim

859 F.3d 817 (9th Cir. 2017) ................................... 55

United States v. Hopkins, 703 F.2d 1102 (9th Cir. 1983) .................................. 38

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Case Law Page(s)

United States v. Inzunza, 638 F.3d 1006 (9th Cir. 2011) .................................. 67

United States v. Lazarenko, 564 F.3d 1026 (9th Cir. 2009) ........................... 66,passim

United States v. McBride, 826 F.3d 293 (6th Cir. 2016) ................................... 58

United States v. McKenna, 327 F.3d 830 (9th Cir. 2003) ................................... 62

United States v. McNeal, 818 F.3d 141 (4th Cir. 2016) ................................... 57

United States v. Meeker, 527 F.2d 12 (9th Cir. 1975) ............................. 38,passim

United States v. Neder, 527 U.S. 1 (1990) ............................................ 49

United States v. Olano, 507 U.S. 725 (1993) .......................................... 46

United States v. Perez, 116 F.3d 840 (9th Cir. 1997) ................................... 49

United States v. Pierre, 254 F.3d 872 (9th Cir. 2001) ................................... 37

United States v. Ross, 206 F.3d 896 (9th Cir. 2000) ................................... 62

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Case Law Page(s)

United States v. Salazar-Gonzalez, 458 F.3d 851 (9th Cir. 2006) ............................ 54,passim

United States v. Salinas, 2017 U.S. Dist. LEXIS 95906 (E.D. Cal. June 21, 2017) ............. 58

United States v. Selja, 918 F.2d 749 (9th Cir. 1990) ............................ 38,passim

United States v. Shipsey, 190F.3d 1081 (9thCir.1999) .................................. 47

United States v. Smith, 282 F.3d 758 (9th Cir. 2002) ................................... 49

United States v. Spillane, 879 F.2d 514 (9th Cir. 1989) ................................... 36

United States v. Tabacca, 924 F.2d 906 (9th Cir. 1991) ................................... 38

United States v. Torres, 2017 U.S. Dist. LEXIS 13361 (E.D. Cal. Jan. 31,2017) .............. 58

United States v. Uchimura, 125 F.3d 1282 (9th Cir. 1997) .................................. 47

United States v. Vebeliunas, 76 F.3d 1283 (9th Cir. 2001) ............................ 66,passim

United States v. Walls, 784 F.3d 543 (9th Cir. 2001) ................................... 46

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Case Law Page(s)

United States v. Walter-Eze, 869 F.3d 891 (9th Cir. 2017) ............................ 36,passim

Statutes and Regulations

18 USc. §3238 ............................................ ll,passim 18 USc. §113(a) .......................................... ll,passim 28 USc. §1291 ............................................ ll,passim 49 USc. §46504 ........................................... ll,passim

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ISSUES PRESENTED FOR REVIEW

1. Whether the district court committed plain error when it improperly and broadly defined the "intimidation of a flight attendant" element of 49 U.S.C. Section 46504 so that every act by Dr. Turner which interfered with the duties of a flight attendant was also necessarily an act which intimidated that flight attendant?

2. Whether the district court erred in not instructing the jury, over defense objection, that Dr. Turner must have knowingly intimidated the flight attendant and whether this error was harmless beyond a reasonable doubt?

3. Whether Dr. Turner's trial counsel was ineffective in failing to object to the incorrect and prejudicially over-broad definition of "intimidation" given by the district court as the requirement for proof beyond a reasonable doubt of the second element of a violation of 49 U.S.C. Section 46504?

4. Whether the failure of the district court to give a limiting instruction after dismissing the charges of intimidation of the pilot and its amending the indictment to delete reference to the pilot prior to sending the case to the jury resulted in prejudicial retroactive spillover?

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I.

INTRODUCTION

A. Nature of the Case

1. Jurisdiction

This appeal is taken from the judgment of conviction issued by the

district court on January 10,2017. Appellant Doctor William Turner filed a

timely notice of appeal on July 24,2017, pursuant to Fed. R. App. P. 4(b).

The District Court had jurisdiction over this case pursuant to 49 U.S.C.

§46504 and 18 U.S.C. §3238. This Court has jurisdiction over the trial

appeal pursuant to 28 U.S.C. § 1291.

2. Bail Status

Dr. Turner, who has been sentenced to 3 years probation and 6 months

of home detention, is currently serving his period of probation and home

confinement.

II.

STATEMENT OF THE CASE

On March 23, 2016, Doctor William Turner was indicted on one

count of interfering with a flight attendant or flight crew member, in

violation of 49 U.S.C. §46504 and 18 U.S.C. §3238, and two counts of

simple assault, in violation of 18 U.S.C. § 113(a). Dr. Turner's trial

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commenced on February 7, 2017 and concluded on February 10, 2017. At

the conclusion of the trial, the jury acquitted Dr. Turner on both counts of

simple assault but convicted him of the charge of interference with a flight

attendant.

A. Testimony of Lena Goralska.

Lena Goralska, a flight attendant onboard American Airlines Flight 7

from Dallas-Fort WOlih to Kahului, Maui on March 14, 2016 ("Flight 7"),

testified regarding the layout of the airplane, as well as her background,

training, and recollection of the events that transpired during Flight 7. [Ee

108-115.] 1

Ms. Goralska testified that, at the time of the trial, she had been a

flight attendant for approximately twenty-one (21) years. [ER 108:22-

109:6.] She received training in safety and onboard procedures, as well as

service procedures. [ER 109:10-110:4.] During her career, Ms. Goralska

received recurring training in safety procedures that are mandatory for all

flight attendants. [ER 111: 11-20.] Part of this training involves dealing with

passengers, including difficult passengers, and methods of conflict

resolution. [ER 146:9-19; 115:1-4.] Ms. Goralska was one of seven (7) flight

attendants onboard Flight 7, but was not the lead flight attendant, and was

1 ER refers to the excerpts of record filed contemporaneously herewith.

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one of four (4) flight attendants assigned to the main cabin. [ER 117: 14-

30: 17.]

Ms. Goralska also testified as to her duties as a flight attendant

onboard Flight 7, and described the number one priority as safety. [ER

112: 10-12.] Her duties included answering call lights, food service,

performing safety walkthroughs of the aircraft, and monitoring passenger

behavior, which was incorporated into her training. [ER 112:20-113:5;

131 : 7 -21.] Her job duties also included dealing with difficult passengers,

and although it does not occur every flight, she anticipates that she will often

have to deal with difficult passengers who are engaged in conflict onboard

the airplane. [ER 147:12-148:6.]

Ms. Goralska testified that approximately two-and-a-half to three

hours before landing, she noticed that Nicholas, a flight attendant, was

behind in his beverage service and moved his cart past a male passenger

standing in the aisle. [ER 120:17-121 :9; 129:20-130: 1.] Nicholas informed

Ms. Goralska of an altercation going on in the aisle with the passenger. Ibid.

She investigated and saw Dr. Tmner standing and yelling at two other

passengers, Robin Adams and Christina Mulberry, complaining that they

were talking too loudly and didn't know how to behave on an airplane. [ER

121:10-23; 125:19-126:24.] Dr. Turner was assigned an aisle seat, Ms.

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Adams was seated directly in front of him, and Ms. Mulberry was in an aisle

seat diagonally forward and to the right of Dr. Turner's seat. Ibid.

Ms. Goralska testified that Dr. TUlner used profanity in addressing

Ms. Adams and Ms. Mulbeny, but that the women were not responding. [ER

123:6-14.] The women told her that they were exchanging pleasantries when

Dr. Turner complained that they were talking too loudly. [ER 123:15-124:8.]

Ms. Goralska said that she attempted to get Dr. Turner to sit down for

approximately ten to fifteen minutes before he complied. Ibid. Ms. Goralska

wasn't sure what occUlTed before she came into the situation, so she asked

the women not to do anything to contribute to the situation and to infOlm a

flight attendant if anything else happened. [ER 128:8-24.] Dr. TUlner was

not violent, and there was no report of spitting, kicking, or any offensive

touching in any way. [ER 1 73 : 1-15.] Once Dr. Turner sat down, he calmed

down and wasn't doing anything provocative or aggressive, and so Ms.

Goralska left the area. [ER 174:2-23.]

Five to ten minutes later, a passenger informed her that the dispute

reinitiated. [ER 129:2-7.] Ms. Goralska doesn't know what occuned to

renew the conflict. [ER 177:25-178:20.] She addressed the situation while

Nicholas informed the pilots of a passenger disturbance that the flight

attendants were having a difficult time containing. [ER 129: 8-1 7.]

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Ms. Goralska said that Dr. Turner continued to swear at the women

and complain that they wouldn't stop talking or quiet down. [ER 132:7-21.]

The women told Ms. Goralska that Dr. Turner threatened to break Ms.

Mulbeny's neck, but she did not hear him say that. Ibid. Ms. Goralska

testified that Dr. Turner would not sit down or respond to her directly,

voicing his complaints directly at Ms. Mulbeny and Ms. Adams. [ER 133:4-

18.] According to Ms. Goralska, she then witnessed Dr. Turner spit in Ms.

Mulberry's face. [ER 133:18-22.]

Witnessing the spitting shocked Ms. Goralska, and she was unsure

what Dr. Turner was capable of doing. [ER 134:1-3; 136:3-7.] After the

spitting, she made the assumption that he was capable of doing physical

harm to someone. Ibid. Ms. Goralska left to inform the crew in order to

contain the situation and separate the parties. [ER 134:4-18.] Ms. Goralska's

concern was for the two female passengers, believing that Dr. Turner was

capable of physically harming them. [ER 217:19-22.] She stated that Dr.

Turner directed his actions at the two women rather than engage with her,

and that he never displayed any anger towards her. [ER 198:23-25; 217:23-

218:12.]

Michael and Christina Mulberry were moved to the cockpit crew rest

seats, and Ms. Adams switched seats with an off duty American Airlines

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employee. [ER 134:20-47:9; 184:10-185:3.] Once the parties separated, Dr.

TUlner stayed in his seat and appeared to be taking a nap. [ER 135:22-25.]

Ms. Goralska stated that the initial incident occurred two and a half

hours before landing, and lasted until approximately thirty minutes before

landing, but admitted that she didn't have any way of gauging time other

than when flight attendants end their breaks. [ER 136:8-24.] During the

incident, she was unable to perform flight attendant duties in the main cabin,

including answering call lights, assist with an ill passenger, or take turns

performing a safety walkthrough of the aircraft. [ER 140:10-18.] She also

monitored Dr. Turner's behavior for the remainder of the flight. [ER 136:25-

137:2.]

As a result of the incident, the captain, Chris Maracchini, forfeited his

rest breaks and the flight crew went into cockpit lockdown. [ER 137:18-25.]

She described cockpit lockdown as a situation where all pilots are secured

behind the cockpit door, without opening the cockpit door even for restroom

breaks, mandated crew rest breaks, or meals. [ER 138:1-9.] Communication

between the pilot and the crew is limited to the discussion of security issues.

Ibid. She described four threat levels associated with a cockpit lockdown, I

escalating from a passenger not being compliant by responding to verbal

instructions to an attempted breach of the cockpit. [ER 138:10-25.] Ms.

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Goralska testified that the incident involving Dr. Turner required the pilots

to go into a level-two cockpit lockdown, which she described as a passenger

not being compliant and using threatening behavior. Ibid. The cockpit

lockdown lasts until the plane lands and is secured. Ibid.

B. Testimony of Christina Mulberry.

Christina Mulberry, an insurance agent from Springfield, Missouri,

testified regarding the events that transpired on Flight 7. [ER 207:13-209:3.]

Ms. Mulberry testified that approximately four-and-a-half hours into the

flight, she began a casual conversation with a woman seated across the aisle

from her. [ER 211:3 -212: 10.] She described the conversation as being

conducted in a normal tone of voice for approximately forty-five seconds.

[ER 212:10-13; 213:20-22; 234:3-7.] Ms. Mulberry testified that Dr. Turner,

who was seated behind the lady that she was talking to, took his headphones

out of his ears, leaned forward, and started swearing at both of them about

proper plane etiquette and instructing them to keep their mouths shut. [ER

212:19-213:10.]

According to Ms. Mulberry, Dr. TUlner remained seated but leaned

forward and continued to swear at the women in a loud, angry and

aggressive voice for approximately thirty seconds until a male flight

attendant arrived. [ER 214:2-8.] Approximately fifteen seconds after the

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male flight attendant departed, a female flight attendant came to address the

situation. [ER 236:10-23.] Dr. Tmner continued to swear about their conduct

and proper plane etiquette. [ER 214:14-215:10.] Dr. Turner wanted to be

moved to a different seat, but the female flight attendant told him that the

plane was full and he needed to remain calm and stay seated. [ER 215:1-10.]

The flight attendant spoke to the parties for approximately twenty seconds

before leaving, asking Ms. Mulberry to be quiet and not to talk to the

passenger on her left. [ER 215:11-16; 244:23-255:11.]

After the flight attendant left, Ms. Mulberry testified that she

whispered to her husband who had been sleeping about what happened. [ER

215 :23-216: 10.] This discussion reinvigorated the confrontation with Dr.

Turner, who stood up and began swearing at her again. Ibid. Ms. Mulbeny

stated that Dr. Turner got in her face, pointing his finger and swearing, when

she felt spit hit her face. [ER 216:11-217:14.] She described it as a

directional spray from his mouth, rather than a "loogie" spit. [ER 217: 14-

22.] The spitting incident occurred twenty seconds after the flight attendant

left the area. [ER 245: 14-24.]

Ms. Mulberry testified that in response to her being spit on, her

husband asked Dr. Turner to sit down, Dr. Turner threatened to "kick his

ass" after the plane landed, but that Dr. Turner eventually sat down at her

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husband's request. [ER 218:5-21; 239:20-240:10; 246:11-15.] After Dr.

Turner sat back down, he kicked the back of Ms. Adams' seat, and

threatened to break her neck when she asked him to stop. [ER 220:1-9;

240: 18-241: 16. This occurred twenty'seconds after the spitting incident. [ER

246:6-15.]

Ms. Mulberry testified that she got up to wash her hands and contact

the flight attendants to inform them that the dispute was continuing, and it

was determined that she and her husband would be moved to different seats.

[ER 218:24-219:16; 242:20-243:25.] Less than a minute passed between the

spitting incident and speaking to the crew, and it took approximately thirty

seconds for the flight attendants to move her husband and baggage to their

new seats. [ER 244:1-4; 246:19-247:11.] Ms. Mulberry never returned to her

original seat for the remaining two-and-a-half to three hours of the flight.

[ER 221:1-6; 222:5-10.]

C. Testimony of Robin Adams.

Ms. Adams, a dance teacher from Pascagoula, Mississippi, testified

regarding the events that transpired on Flight 7. [ER 251: 12-252:6.] Ms.

Adams testified that she was having a conversation with Ms. Mulberry in a

normal tone and volume for approximately five minutes when the man

sitting behind her leaned forward and, cursing at them, told them that he did

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not want to listen to their "F'ing conversation" and that it was not proper

plane etiquette to speak across the aisle. [ER 253 :24-256: 1; 269: 18-270:9.]

Ms. Adams responded by saying that she didn't know there were any rules

on an aircraft. [ER 256:2-16; 270:21-271 :3.]

Dr. Turner sat back and said nothing further, but after Ms. Adams

thought about it for approximately two minutes she got up in her seat, turned

around, and pointed at Dr. Turner and said: "You are an asshole." [ER

256:2-16; 270:21-273:7.] Dr. Turner responded by getting out of his seat and

pointing his finger at Ms. Adams, to which Ms. Adams responded by twice

telling him "Get your F'ing finger out of my face." [ER 256: 17-24.] Ms.

Adams then blew at Dr. Turner to get him out of her face, to which Dr.

Turner responded "I'm going to break your F'ing neck," and she responded

by saying "Not if I break yours first." [ER 256:25-257:5.] At some point Dr.

Turner pushed her seat from behind with his hands, but she could not recall

when that occurred. Ibid. The pushing may have been when he got out of his

seat, but it may have been after he sat back down. [ER 273: 5 -25.]

Ms. Adams denied spitting on Dr. Turner, and did not see Dr. Tmner

spit on Ms. Mulberry, but testified that she saw Ms. Mulberry wipe her face

and say "You just spit on me" and heard Dr. Turner say "I'll F'ing do it

again too." [ER 258: 1 0-259:5.] After the spitting occurred, a flight attendant

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anived to address the situation and calm everybody down. [ER 259:6-19.]

The flight attendant ended the incident by moving Ms. Adams and the

Mulbenys to other seats. Ibid. Ms. Adams testified that the time between

when her conversation with Ms. Mulberry began, and when the flight

attendant anived after the spitting incident occuned, was approximately five

minutes. [ER 257:23-258:19.] The entire incident took place in a "very

short" period of time. [ER258:2-259:14.]

D. Testimony of Captain Chris Maracchini.

Captain Chris Maracchini, a commercial airline pilot of 30 years, was

the captain onboard Flight 7. [ER 280:5-10; 288:3-13.] Captain Maracchini

testified to the training pilots receive to address safety risks caused by

passengers, including security, risk management training, and resolving

passenger issues or misconduct. [ER 287: 19:288:2.]

After testifying to his training and experience, as well as the type of

aircraft and instruments used in operating the aircraft, Captain Maracchini

testified about the need for pilots to take breaks during long flights. [ER

280:9-286:14.] There were three pilots onboard Flight 7. [ER 284:14-285:5.]

Captain Maracchini testified to the importance of avoiding pilot fatigue by

taking rest breaks, particularly to prepare for the landing phase. [ER 285 :25-

286:14.] On the Boeing 767, there is a lie-flat business class seat, with a

2,1


curtain to block off light and sound, reserved for pilots so they can get some

sleep. Ibid.

On Flight 7, Captain Maracchini testified that the flight attendants

informed him that there was a passenger disturbance involving a male

passenger who was annoyed because there were other passengers talldng

really loudly, that the disturbance had not been resolved by the flight

attendants, and that the situation escalated to a confrontation involving the

passenger spitting and shoving or kicking the seat in front of him. [ER

289: 11-290: 19.] After Captain Maracchini learned of the spitting and

shoving or kicking, he concluded that the pilots should go into a level-two

cockpit lockdown. Ibid. This occurred at least two-and-a-half hours prior to

landing, but he believed it was closer to three hours. [ER 307:10-20.]

The cockpit lockdown required the pilots to shut off the cockpit,

preventing any routine movement between the cockpit and the cabin,

interrupting one of the pilots' breaks and preventing Captain Maracchini

from taking his scheduled break or receiving meals. [ER 291: 1-292 :23.]

Captain Maracchini testified that he was tired when he got to Maui, that he

believed he suffered a reduction in cognitive skills, describing how fatigue

can get to a level where it acts like alcohol on the body. [ER 292:24-293:13;

321 :3-7.] He is sixty-one years old, and testified that age is a risk factor in

22


suffering from altitude related dehydration. [ER 322:5-323:4.] He also

testified that entering information about the incident into the computer

system during flight constituted a cockpit distraction. [ER 323:23-324:19.]

Captain Maracchini testified to the physical toll the cockpit lockdown

had on him, explaining first that he suffers from sciatica that causes him pain

when he sits, that he has three bulging disks, and that he had three major

surgeries in order to alleviate the sciatica. [ER 293:14-25.] Normally,

Captain Maracchini lies down flat during his rest breaks in order to alleviate

the pain from these injuries, but there is no place to lie down in the cockpit

during a cockpit lockdown. [ER 294: 1-7.] Other than this instance, Captain

Maracchini has never gone into a level-two cockpit lockdown since those

procedures were developed after 9/11. [ER 294:8-18.]

E. Testimony of Special Agent Joel Rudow.

Special Agent Joel Rudow was the investigating agent for the incident

that occuned onboard Flight 7. [ER 333:11-24.] On March 14,2016, Agent

Rudow responded to a call of a disturbance onboard Flight 7, and conducted

interviews with Ms. Adams, Ms. Mulberry, Dr. Turner, Ms. Goralska,

Captain Maracchini, and airport security. [ER 333:11-335:11; 342:18-

343:7.]

According to Agent Rudow, Dr. Turner told him that his girlfriend,

23


Tamara Thompson, was sleeping next to him on the plane, and the two

women seated in front of him were engaging in a loud conversation across

the aisle. [ER 336:4-15.] Dr. Turner said that he leaned forward and asked

them to be quiet, but they ignored his request. [ER 337:2-13.] He then got

out of his chair and went forward in the aisle to tum around and face them to

make his point that they were in violation of airplane etiquette by talking

across the aisle. Ibid. At that point, he was speaking to Ms. Adams, who

blew at him to kind of blow him away. Ibid. Dr. Turner noticed that the

flight attendants were being called, so he returned to his seat. Ibid.

While Dr. TUlner was standing, Ms. Mulbeny's husband told him to

sit down, and continued to engage Dr. Turner even after he returned to his

seat. [ER 337:18-338:6.] Dr. Turner denied spitting in Ms. Mulberry's face,

but did not tell Agent Rudow that anybody spat upon him. [ER 338:14-20.]

Dr. Turner informed Agent Rudow that he requested to be moved to another

seat, but that request was refused. [ER 338:10-13.]

F. Testimony of Tamara Thompson.

The defense called Ms. Thompson, an emergency room nurse from

Kemp, Texas, to testify regarding the events that transpired during her trip

with Dr. Turner on Flight 7. [ER 371:1-14; 377:1-5.] She testified that she

and Dr. Turner worked together in the emergency room and eventually

24


developed a dating relationship. [ER 373:24-375:3.] Ms. Thompson

discussed her training as a nurse, and specifically her training in conflict

resolution. [ER 424:19-427:3.]

Ms. Thompson testified that she worked five twelve-hour shifts in the

six days before the flight, and she went to the airpOli just after her last shift.

[ER 377:6-378:21.] Ms. Thompson planned on sleeping onboard the flight,

and started to fall asleep within the first hour of the flight. [ER 408:4-20.]

Ms. Thompson described the environment onboard as dark and quiet, as the

lights were dimmed and many of the window shades drawn. [ER 408:17-

409:4.]

Ms. Thompson woke up to Dr. Turner standing and talking to the

woman in front of his seat about quieting down and not disrupting other

passengers on the plane while they were trying to rest. [ER 409:25-410:5.]

She described the exchange as Dr. Turner repeatedly asked the woman

across the aisle if she could tone it down, explaining that Ms. Thompson was

trying to rest, but the woman was being argumentative. [ER 412:11-413:15.]

A female flight attendant arrived and both Dr. Turner and the woman took

their seats. [ER 413:16-21.] According to Ms. Thompson, it took less than

thirty or forty seconds for the flight attendant to get the parties to sit down.

[ER 413:22-414:1.]

25


The flight attendant would not listen when Dr. Tmner attempted to

explain the situation, shushing him immediately. [ER 414:4-17.] Ms.

Thompson described the flight attendant making an alligator gesture with

her hand while shushing him. [ER 415:23-416:4; 417:9-418:4.] She thought

that the flight attendant was being inappropriate, disrespectful, and

dismissive, and that it demonstrated a lack of control on her part. [ER 424:4-

14.] Dr. Turner was upset and trying to resolve the situation, but he wasn't

yelling, or making demonstrative gestures. [ER 415:2-22.]

After the flight attendant left, the lady in front of Dr. Tmner tmned

around and very loudly said that Ms. Thompson's "husband was an F'ing

asshole and [she] needed to divorce him." [ER 420:4-19.] This reignited the

situation until the flight attendant returned and separated the parties, moving

the women to other parts of the plane. [ER 420:20-423:2.] According to Ms.

Thompson, the entire incident, from waking up until the flight attendant

moved the women, took approximately ten to fifteen minutes. [ER 423 :3-

14.] From Ms. Thompson's perspective, it wasn't a big deal or a situation

where anyone needed to be fearful. [ER 423:15-424:2.]

G. Testimony of Doctor William Tmner.

The defendant, Doctor William Turner, a fifty-three year old

emergency room physician from Kemp Texas, testified regarding the events

26


that transpired on Flight 7. [ER 446:3-451 :5.] Dr. Turner testified that the

incident occurred approximately three to four hours into the flight. [ER

454: 16-24.] The lights were dim, the shades were drawn, and Ms. Thompson

was sleeping to his left. [ER 454:25-455:25.]

Dr. Turner overheard a conversation between the woman seated in

front of him and the woman seated across the aisle to the front-right of him.

[ER 456:14-457:14.] Their conversation was fairly lively, conducted at a

noticeable volume that he could hear over his music. [ER 457:15-458:7.]

The conversation continued for approximately five minutes before Dr.

Turner tapped Ms. Mulberry on the elbow, and informed her that Ms.

Thompson was trying to sleep, told her that it's plane courtesy not to talk

across the aisle, and asked them to quiet down. [ER 458:8:24.] Dr. Turner

denied yelling, raising his voice, or using any obscenities in his request. [ER

458:25-459:5.]

Ms. Mulberry expressed irritation at his request, stating that she would

do as she pleased. [ER 459:6-14.] Their conversation continued for

approximately a minute before Dr. Turner got out of his seat to face the

women and demonstrate for them how loud they were being by talking to

Ms. Thompson. [ER 459:15-460:8.] He denied doing anything physical

towards either woman, including striking, jostling, or touching the women's

27


seats. [ER 460:9-461 :2.] At that point, Ms. Adams looked up at Dr. Turner

and spit in his face. [ER 461:23-462:25.] Dr. Turner described the spit as a

flume of particulate matter sprayed on his face. [ER 463: 10-464: 18.] Dr.

Turner was shocked by what took place, and the flight attendant quickly

arrived which prevented anything else from happening. Ibid.

The flight attendant arrived within a minute of when he first stood up.

[ER 465:13-466:4; 492:10-25.] It took Dr. Turner twenty seconds to comply

with her request to sit down due to the shock of being spit on and yelled at

by multiple people, including Ms. Mulberry's husband who wanted to fight.

Ibid. When Dr. Turner attempted to explain to the flight attendant what

happened, she shushed him with an alligator motion with her hand. [ER

466:5-23.

Dr. Turner eventually explained his desire not to continue to be seated

near the women. [ER 466:23-467:4.] The flight attendant spoke with the

women and left the area, returning shortly to inform Dr. Turner that there

was nowhere on the plane to move anybody. [ER 467:20-468:14.] During

the time the flight attendant was gone, the woman seated in front of Dr.

Turner tuined around in her seat and said to Ms. Thompson that "Your

husband is a complete asshole. You need to divorce him." [ER 468:15-

469:8.] The wom_an pointed at .Dr. T1l9:ter, who told her that if she spit on

28


him again he would break her neck. [ER 494:19-495:7.]

Due to the ongoing nature of the dispute, Dr. Turner insisted that the

parties be separated despite the flight attendant's assurances that the women

agreed to be quiet. [ER 468:15-469:8.] The flight attendant then moved the

women to other seats on the plane. [ER 469:9-14.] Dr. Turner denied hitting,

shoving or kicking anybody, or spitting on anybody during the entire

incident, which lasted no more than fifteen minutes. [ER 469:15-470:6.]

H. Jury Instructions and District Court's Ruling on Dr. Turner's Motion for a Judgment of Acquittal.

At the conclusion of the Government's case, Dr. Turner moved for a

judgment of acquittal on all counts. [ER 357:3-22.] As to Count One,

interference with a flight attendant or flight crew member, the District Court

wanted to address the absence of evidence that Dr. Turner knowingly

intimidated the pilot. [ER 360:25-361: 17.]

The Government argued that Dr. Turner did not have to knowingly

intimidate the pilot, despite the jointly proposed jury instructions and the

Government's trial brief listing the second element to be that the defendant

knowingly either assaulted or intimidated a flight crew member. [ER 77;

362:5-363:9; 366:16-23.] The Government acknowledged that intimidation

required a reasonable fear of bodily injury to be satisfied, but argued that it

could be satisfied by fear of injury to the passengers', [ER 357:12-21;

29


363 :20-364:4.]

The Govelnment submitted amended proposed jury instructions that

removed the term "knowingly" from the second element of the interference

charge. [ER 73; 390:13-25.] The District Court concluded that even if the

term knowingly was removed, it did not solve the problem with respect to

the pilot. [ER 391: 1-25.] The District Court stated that, even without the

term knowingly attached to the intimidation element, there would still have

to be some volitional act that Dr. Turner knew, or reasonably should have

known, would intimidate the pilot. [ER 397:9-405: 14.]

The District COUli pointed to the various definitions of intimidation in

the instructions, stating that the phrase "to place" a person in fear or "to

make" a person behave a certain way, constitutes purposeful action. [ER

399:1-25.] The District Court stated that intimidation requires either

purposeful action with consciousness that it would affect the intimidated

individual or that it would be reasonable to think that the party would be

affected. [ER 400:7-14.]

At the conclusion of trial, the District Court granted a judgment of

acquittal on Count One with respect to the pilot, ruling that intimidation

"requires some kind of consciousness on the part of the defendant, at the

very least the defendant should have reasonably known that a particular

30


airline employee would be intimidated." [ER 502:4-506: 12; 511 :2-11.]

Nevertheless, over defense counsel's objection, the District COUli refused to

instruct the jury that the intimidation must be done knowingly. [ER 500:7-

21.] The District Court amended the jury instructions to reflect only the

interference with a flight attendant, rather than a flight attendant or flight

crew member. [ER 499:5-13; 501:7-502:3.]

With respect to Count One, the District Court provided the following

instructi ons:

The defendant is charged in Count 1 of the indictment with interference with a flight attendant on or about March 14, 2016, in violation of section 46504 of Title 49 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, that the defendant was on an aircraft in flight in the special aircraft jurisdiction of the United States;

Second, that the defendant intimidated a flight attendant of the aircraft; and

Third, that such intimidation interfered with the performance of the duties of the flight attendant of the aircraft or lessened the ability of the attendant to form those duties.

[ER 523: 14-524:2.]

The District Court further defined intimidation to include the following:

A flight attendant may be 'intimidated' by the use of words or actions that place the flight attendant in reasonable apprehension of bodily harm, either to the flight attendant or to another, or by the use of words or actions that make the flight attendant fearful or make that flight attendant refrain from

31


doing something that the flight attendant would otherwise do, or do something that the flight attendant would otherwise not do, or interfere with or lessen the flight attendant's ability to do something.

One person in a group can be intimidated by threats directed at . the group in general. The government does not have to prove that the flight attendant was in fact frightened for her own physical safety in order to prove that the defendant performed the criminal act of intimidation. It is sufficient that the conduct and words of the defendant would place an ordinary, reasonable person in fear.

The government is not required to prove that the defendant intended to interfere with or lessen a flight attendant's ability to perform her duties.

[ER 524: 11-252:4.]

The District Court did not discuss the possibility of providing the jury

with a limiting instruction informing the jury that the allegations pertaining

to the pilot had been dismissed, instructing the jury not to speculate or

consider why the charge was dismissed, instructing the jury not to consider

evidence pertaining to the pilot towards the remaining charge of interfering

with the flight attendant, or admonishing the jury that the dismissal should

not prejudice their view towards the remaining count. No limiting

instructions were provided to the jury related to the dismissed allegation.

32


III.

SUMMARY OF THE ARGUMENT

Dr. Turner should be granted a new trial because the District Comi's

jury insttuctions pertaining to the alleged violation of 49 U.S.C. §46504

denied Dr. Turner due process of law. No Ninth Circuit model instruction

for 49 U.S.C. §46504 exists, and this case calls upon this Court to determine

the appropriate definition of intimidation and the conect mens rea associated

with that element. Dr. Turner contends that conect instructions on the

intimidation element would require a finding that Dr. Turner knowingly

intimidated the flight attendant and would define intimidation to require

words or conduct that would place an ordinary, reasonable flight attendant in

fear of bodily harm. The District Court substantially deviated from such an

instruction and reduced, ifnot eliminated, the Government's burden of proof

on an essential element of the offense.

First, the instructions provided multiple enoneous alterative

definitions of intimidation that did not require the jury to find that a

reasonable flight attendant would fear bodily injury. The one alternative

definition that included a fear of bodily injury enoneously permitted the

finding based upon a fear of injury to another person, rather than a

reasonable fear of injury to the flight attendant, but the vast majority of the

33


alternative definitions did include fear of bodily harm of any kind. Any

action that caused the flight attendant to alter her behavior in any way

satisfied the definitions. In fact, the instructions defined intimidation so

broadly that they required a finding of intimidation based upon any words or

conduct that interfered with or lessened the flight attendant's ability to do

something, language that overlaps with the interference element of the

offense, thereby subsuming the intimidation element into the interference

element.

A review of the evidence makes it clear that a correctly instructed jury

may well have reached a different decision, particularly in light of the jury's

decision to acquit Dr. Turner on the assault charges that were the most

significant pieces of evidence supporting a reasonable fear of bodily harm.

These erroneous jury instructions constitute plain error, but this Court should

separately find that trial counsel's failure to object to the inaccurate

definitions of intimidation constituted ineffective assistance of counsel.

Second, the District Court erroneously refused defense counsel's

request for an instruction that Dr. Turner must knowingly intimidate the

flight attendant, which is the appropriate mens rea for the intimidation

element. This error independently denied Dr. Turner due process in that the

prosecutor was not required to prove each element of the charged offense

34


beyond a reasonable doubt, but also exacerbated the District Court's

erroneous definitions of intimidation by allowing a conviction based solely

upon accidental or unknowing interference with any aspect of a flight

attendant's duties. This constitutional error was not harmless beyond a

reasonable doubt.

Finally, there was significant prejudicial spillover from evidence

introduced on a dismissed theory of liability. The District Court dismissed

Count One as it related to the pilot because Dr. Turner had no reason to

know that his actions would intimidate the pilot. Nevertheless, the jury heard

considerable testimony about the pilots entering into a level-two cockpit

lockdown in response to the incident, and the negative impact this security

measure had on the health, comfort, and fatigue level of the pilots. The

District Court did not provide a curative instruction to the jury on this issue,

and the serious nature of the circumstances involving the pilots was

confusing, inflammatory, and highly prejudicial to Dr. Turner's defense of

the charge of interference solely related to the flight attendant.

Each of these errors warrants granting Dr. Turner a new trial on Count

One, with correct instructions and without extraneous inflammatory

evidence unrelated to the alleged interference with the flight attendant.

35


IV.

ARGUMENT

A. The District Court's Erroneous Jury Instructions Related To The Intimidation And Interference Elements of 49 U.S.C. §46504 Permitted The Jury To Convict Dr. Turner Without Proof Beyond A Reasonable Doubt Of Every Fact Necessary To Constitute The Charged Offense

1. The District Court Erroneously Defined The Intimidation Element For 49 U.S.C. §46504 In a Manner That Broadly Expanded Dr. Turner's Criminal Liability Beyond That Authorized By Law

a. Standard of review.

A jury instruction to which there is no objection at trial is reviewed

for plain error. United States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir.

2017). Whether a jury instruction misstates an element of an offense is a

question of law that is reviewed de novo. See United States v. Spillone, 879

F.2d 514, 525 (9th Cir. 1989), cert. denied, 498 U.S. 878 (1990).

b. The alternative definitions of intimidation did not accurately define intimidation or require a fear of bodily harm.

The Due Process Clause protects an accused against conviction except

upon proof beyond "a reasonable doubt of every fact necessary to constitute

the crime with which he is charged." In re Winship, 397 U.S. 358, 364

(1970); see also Cage v. Louisiana, 498 U.S. 39, 39 (1990); Rhoades v.

Henry, 638 F.3d 1027, 1042 (9th Cir. 2011). Misinstruction or omission of

36


an element of an offense can deprive a defendant of his constitutional right

to have a jury find the existence of each element of the charged offense

beyond a reasonable doubt. See, e.g., United States v. Pierre, 254 F.3d 872,

876 (9th Cir. 2001) (misinstruction on elements of self defense); United

States v. Aguilar, 80 F.3d 329, 330 (9th Cir. 1996) (misinstruction on mens

rea element); Roy v. Gomez, 81 F.3d 863, 866 (9th Cir. 1996)

(misinstruction of aiding and abetting element), overruled on other grounds

in California v. Roy, 519 U.S. 2 (1996).

In the present case, the District Court instructed the jury that a

violation of 49 U.S.C. §46504, requires proof that the defendant 1) was

within the special aircraft jurisdiction of the United States, 2) intimidated a

flight attendant of the aircraft, and, 3) that the intimidation interfered with

the performance of the duties of the flight attendant of the aircraft or

lessened the ability of the attendant to form those duties. [ER 523:14-524:2.]

The District Court defined intimidation to include the following:

A flight attendant may be "intimidated" by the use of words or actions that place the flight attendant in reasonable apprehension of bodily harm, either to the flight attendant or to another, or by the use of words or actions that make the flight attendant fearful or make that flight attendant refrain from doing something that the flight attendant would otherwise do, or do something that the flight attendant would otherwise not do, or interfere with or lessen the flight attendant's ability to do something.

37


[ER 524:11-525:4] (emphasis added).

The definition of intimidation provided to the jury included broad

language and multiple alternatives that substantially diverged from case law

limiting intimidation to conduct that would place an ordinary, reasonable

person in fear of bodily harm. See, e.g., United States v. Tabacca, 924 F .2d

906, 911 (9th Cir. 1991) (intimidation for interference with flight attendant

requires that the "conduct and words of the accused would place an ordinary,

reasonable person in fear"); United States v. Meeker, 527 F.2d 12, 15 (9th

Cir. 1975) (same) (citing United States v. Alsop, 479 F.2d 65, 66-67 (9th Cir.

1973) (defining intimidation for bank robbery as a taking "in such a way that

would put an ordinary, reasonable person in fear of bodily harm")); United

States v. Selja, 918 F.2d 749,751 (9th Cir. 1990) (same); United States v.

Hopldns, 703 F.2d 1102, 1103 (9th Cir. 1983) (same).2

While the District Court's instruction included aspects that conform to

the traditional legal definition of what constitutes intimidation, i. e. a

requirement that the flight attendant fear bodily harm, the instruction also

included multiple alternative definitions that would independently satisfy the

intimidation requirement even where a reasonable flight attendant would not

2 This case raises no potential complication involving fear of financial injury or injury to the property of the victim. See, e.g., United States v. Cassel, 408 F.3d 622, 636-37 (9th Cir. 2005).

38


fear bodily harm. Specifically, the definition of intimidation included any

words or actions that made the flight refrain from doing something that the

flight attendant would otherwise do, made her do something that she would

otherwise not do, or interfered with or lessened the her ability to do

something. These alternative definitions are so broad that they require a

finding of intimidation based upon any words or conduct that alter a flight

attendant's behavior in any way, and require a conviction without requiring

a finding that it would be reasonable to fear bodily harm, and therefore

without requiring proof of every fact necessary to constitute the crime.

In United States v. Aguilar, 80 F.3d 329 (9th Cir. 1996), addressing

the knowledge element of a wiretap statute, this Court recognized that

multiple instructions on an element of an offense can have the effect of

diluting the meaning of a defined element and lowering the burden required

to establish the element, even where one of multiple definitions is correct. In

Aguilar, the district court instructed the jury on the knowledge element of

the crime by defining it to include actual knowledge or, alternatively, proof

of a high probability of the awareness of the particular circumstances at

issue. Id. at 330-331. This Court noted that the "two alternatives were

connected by the disjunctive 'or'" allowing the jury "to find that the element

of knowledge was satisfied not only if it found that the appellant was aware

39


of the circumstance, that he actually knew it, but also if it found that he did

not actually know it, but he was aware of a high probability that it existed."

Id. at 332. These alternative definitions diluted the meaning of knowledge,

and allowed the jury to convict the appellant on a finding of less than actual

knowledge or awareness. Id. at 331-333.

As in the Aguilar case, the instruction here provided multiple

alternative methods for the jury to find intimidation, separated by the

disjunctive "or." In both Aguilar and the present case, the existence of a

conect alternative does not cure the inclusion of an inconect alternative that

can independently satisfy the element of the offense. Here, the intimidation

element can be alternatively satisfied by substantial conduct that does not

require a fear of bodily harm, or fear of any kind.

c. The instructions subsumed the intimidation element into the interference element.

The instructions provided to the jury define the second and third

elements of the offense using the same language. The interference element is

satisfied when the intimidation "interfered with the performance of the

duties of the flight attendant of the aircraft or lessened the ability of the

attendant to perform those duties." Intimidation, under the second element,

is alternatively defined to include "any words or actions that . .. interfere

with or lessen the flight attendant's ability to do something." Clearly,

40


interference with, or lessening, the flight attendant's ability to perform her

duties under the interference element falls within the category of

interference with, or lessening, the flight attendant's ability to do

"something" under the intimidation element.

By definition, any interference, in satisfaction of the third element,

necessarily constitutes intimidation, in satisfaction of the second element,

effectively subsuming the intimidation element into the interference element

and eliminating it from the jury's consideration. The instructions required

the jury to enter a judgment of conviction based upon any act that interferes

with, or lessens, a flight attendant's ability to do their duties, because any

such act would always satisfy both the definition of interference and the

definition of intimidation, even where a reasonable flight attendant would

not fear bodily injury to any person.

Neither United States v. Meeker, 527 F.2d 12, 15 (9th Cir. 1975) nor

Pattern Criminal Jury Instructions, 11th Cir., 103 (2003), cited by the

parties in support of the proposed jury instructions, [ER 79.] define

intimidation so expansively, and Dr. Turner can find no legal authority

supporting a definition of intimidation that includes any words or actions

that "interfere with or lessen the flight attendant's ability to do something."

41


This language appears to have been directly adapted from the language of

the third element of the offense, without any legal authority.

In Meeker, the defendant, convicted of interfering with a flight crew

member under a prior version of the statute, challenged the sufficiency of the

evidence by arguing that he did not directly intimidate the pilot. In

addressing the challenge, this Court stated that the intimidation element can

be satisfied by conduct threatening the crew member individually, or a group

that includes the flight crew member. Meeker, 527 F.2d at 15. This Court

concluded that intimidation is satisfied where the "conduct and words of the

accused would place an ordinary, reasonable person in fear." Meeker, 527

F.2d at 15. The fear referenced in Meeker, as stated in Alsop, supra, 479

F.2d at 66-67, cited by Meeker, is a fear of bodily injury. Far from

supporting the expansive definition of intimidation given to the jury, which

permitted a finding of intimidation based upon any act of interference,

Meeker clearly requires conduct that would place a reasonable person in fear

of bodily injury.

Meeker also cautioned against application of the statute's prohibition

to conduct that is neither directed at, nor includes, the flight crew member,

including situations involving simple assault between passengers, stating:

The sufficiency of the evidence for Count I is attacked by contending that Meeker did not directly intimidate the pilot.

42


The possible ramifications of this argument raise a difficult issue of some significance. One could conjure up the spectre of the government's employing a section 1472(j) charge for acts which would normally be considered assaults on passengers proscribed under section 1472(k) (1). This would escalate an act normally punishable by imprisonment up to six months and a fine not to exceed $500 to a possible penalty of up to 20 years in prison and a $10,000 fine. The contention might walT ant careful scrutiny were this a case of a pilot unnecessarily sauntering back to the cabin to intermeddle officiously in a heated dispute between passengers. Meeker's case, however, presents no such troublesome scenario.

Meeker, 527 F.2d at 15.

The present case raises the same concerns this COUli warned of in

Meeker. By virtue of the jury acquitting Dr. Turner on the assault charges, it

is clear that the jury did not find beyond a reasonable doubt that the alleged

spitting and kicking incidents occulTed, but instead that the incident was

limited to a heated passenger dispute that ended when the parties were

separated by a flight attendant. However, the jury instructions transform any

dispute resolved by a flight attendant into a serious felony charge of

interfering with a flight attendant.

The District Court's instructions to the jury went well beyond a fear of

bodily harm based upon threating conduct directed at an entire group, as

authorized in Meeker, or even the overly expansive definition in the

Eleventh Circuit's pattern instructions. The instructions provided to the jury

subsumed the intimidation element within the interference element,

43


effectively eliminated the intimidation element from the jury's

consideration, and directed the jury to find intimidation based solely upon

evidence that Dr. Tmner's conduct interfered with, or lessened, the flight

attendant's ability to do her duties. This instruction deprived Dr. Tmner of

his constitutional right to have a jury find the existence of each element of

the charged offense beyond a reasonable doubt.

d. The instructions required a finding of intimidation without requiring a reasonable flight attendant to fear bodily harm.

With respect to the alternative definition of intimidation given to the

jury that included a fear of bodily harm, the instructions permitted a finding

of intimidation based upon words or actions that placed the flight attendant

in apprehension of bodily harm "either to the flight attendant or to another."

The phrase "or to another" includes any situation where a flight attendant

believes that one passenger might harm another passenger, even where the

flight attendant would not reasonably fear bodily injury.

In support of the jointly proposed jury instructions, the parties cited

the case of Meeker, supra, 527 F .2d at 15 and Pattern Criminal Jury

Instructions, 11th Cir., 103 (2003). However, the parties based the

instructions on an outdated version of the Eleventh Circuit Pattern Criminal

44


Jury Instructions. The newer versions of the Eleventh Circuit's instructions

eliminated the phrase "either to the flight attendant or to another.,,3

In Meeker, this Court concluded that a crew member can be

intimidated by threatening conduct directed at them, or at a group that

includes the crew member, but drew a distinction between that situation and

a heated dispute solely between passengers, even where one passenger

commits a simple assault upon another. Meeker emphasizes that the

threatening conduct must include the flight crew member, making it

reasonable for that person to fear bodily harm. Meeker, 527 F.2d at 15.

In the present case, unlike Meeker, there were no riotous conditions

threatening everybody onboard. Ms. Goralska testified that none of the

hostility was directed at her, and her only concern was that Dr. Turner might

harm the other passengers. [ER 198:23-25; 217:23-218: 12.] There was little

to no evidence that she would reasonably fear bodily injury.

Nevertheless, the jury instructions stated that intimidation can be

accomplished by words or actions that place the flight attendant III

3 The newer versions state: "To 'intimidate' someone is to intentionally say or do something that would cause a person of ordinary sensibilities to fear bodily harm. It's also to say or do something to make another person fearful or make that person refrain from doing something that the person would otherwise do - or do something that the person would otherwise not do." Pattem Criminal Jury Instructions, 11th Cir., 118 (2010); 118 (2016).

45


reasonable apprehension of bodily harm not only to the flight attendant, but

also "to another." This language does not draw the distinction that this Court

outlined in Meeker, which required the intimidating conduct to be directed

either at the flight attendant, or at a group of people that included the flight

attendant. The instructions enoneously required the jury to convict Dr.

Turner based solely upon a heated dispute with other passengers that Ms.

Goralska feared might tUlTI into a physical altercation. This misinstruction

deprived Dr. Turner of his constitutional right to have a jury find the

existence of each element of the charged offense beyond a reasonable doubt.

e. The erroneous definition of intimidation constituted plain enol'.

Where a defendant does not object to a given instruction at trial,

appellate courts review the instruction for plain enor, "which requires a

showing that '(1) there is an enor; (2) the enol' is clear or obvious, rather

than subject to reasonable dispute; (3) the enor affected [defendant's]

substantial rights, which in the ordinary case means it affected the outcome

of the district-court proceedings; and (4) the enor seriously affected the

fairness, integrity, or public reputation of judicial proceedings. '" United

States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir. 2017) (quoting United

States v. Walls, 784 F.3d 543, 546 (9th Cir.), cert. denied, 136 S. Ct. 226

(2015); see also United States v. Olano, 507 U.S. 725, 732-34 (1993);

46


United States v. Shipsey, 190 F.3d 1081, 1085 (9th Cir. 1999); United States

v. Uchimura, 125 F.3d 1282, 1286-87 (9th Cir. 1997).

The enor in the present case satisfies all of the plain enor criteria.

First, there was enor. Second, the error was plain and obvious. Case law

defining intimidation limits it to situations involving threats or other conduct

that that would place a reasonable person in fear of bodily harm. See, e.g.,

Alsop, supra, 479 F.2d at 67 n.4; Tabacca, supra, 924 F.2d at 911; Meeker,

supra, 527 F.2d at 15. The instructions provided to the jury included

alternative methods of finding intimidation that did not include any fear of

bodily harm, or fear of harm of any kind.

The instructions enoneously defined intimidation to include any

words or actions that make the flight attendant refrain from doing something

that the flight attendant would otherwise do, words or actions that make the

flight attendant do something that the flight attendant would otherwise not

do, and, perhaps most importantly, any words or actions that interfered with

or lessened the flight attendant's ability to do something. These statements

clearly diverge from the notion of intimidation to include a fear of bodily

harm, and the broad nature of these alternatives apply so generally that they

would implicate any number of innocent hypotheticals.

47


The instruction is based, in pali, on outdated Eleventh Circuit Pattern

Jury Instructions, but goes well beyond the prior and current version of those

instructions. The language defining intimidation to include conduct that

interferes with the flight attendant appears to have been directly adapted

from the interference element of the offense, as it doesn't appear in any

version of the Eleventh Circuit's pattelTI instructions or any Ninth Circuit

case law. See Pattern Criminal Jury Instructions, 11th Cir., 103 (2003); 118

(2010); 118 (2016).

Additionally and separately, the definition of intimidation did not

require the jury to find that a reasonable person in the flight attendant's

situation would fear for her safety, but would allow a finding of intimidation

based solely on the belief that one passenger in a heated dispute might harm

another. These errors are clear and obvious within the meaning of the plain

error rule.

Third, these errors affected Dr. Turner's substantial rights, as the

misinstruction on the intimidation element lowered the Government's

burden of proof on an essential element of the offense. This is paliicularly

true with respect to defining the intimidation element by the language of the

interference element. By definition, any conduct that satisfies the

interference element of the offense will necessarily satisfy the intimidation

48


element, subsuming the intimidation element into the interference element.

This removed the intimidation element from the jury's determination

because they were instructed, as a matter of law, that any interference

constituted intimidation.

A basic tenet of due process is that a criminal conviction must rest

upon a jury's finding of guilt beyond a reasonable doubt on each element of

the crime charged. See United States v. Gaudin, 515 U.S. 506,511 (1995).

While the omission of an element does not always affect the substantial

rights of a defendant, and is therefore not per se prejudicial, cases upholding

convictions rendered on incomplete or enoneous jury instructions have

"relied on the existence of 'strong and convincing evidence' that the missing

element of the crime had been adequately proved by the prosecution."

United States v. Alferahin, 433 F.3d 1148, 1157-58 (9th Cir. 2006) (citing

United States v. Neder, 527 U.S. 1, 15 (1990); United States v. Perez, 116

F.3d 840, 848 (9th Cir. 1997); United States v. Smith, 282 F.3d 758 (9th Cir.

2002) (omission of element not plain enor where underlying facts were

"undisputed" based on the "uncontroverted testimony" of a government

witness)); see also United States v. Freter, 31 F.3d 783, 788 (9th Cir. 1994)

(citing United States v. Gaudin, 997 F.2d 1267, 1272-73 (9th Cir.), affd on

other grounds, No. 90-30334 (9th Cir. June 21, 1994) (en banc) ("when an

49


element of the cnme has been completely removed from the jury's

determination, there can be no inquiry into what evidence the jury

considered to establish that element, because the jury was precluded from

considering the element at alL")

When examining the facts of the present case, the jury could have

concluded that several alternative versions of events occuned. While it is not

celiain what conclusion the jury would have drawn if they received proper

instructions, it is clear that the testimony of the Government's witnesses was

neither undisputed nor uncontrovelied, and the jury ultimately rejected the

allegation that Dr. TUlner assaulted the other passengers, which was the

primary evidence suppOliing any reasonable fear of injury.

Ms. Goralska testified to two different interactions with Dr. Turner

regarding a conflict with other passengers. According to her testimony, the

first involved Dr. Turner standing in the aisle yelling and cursing at Ms.

Adams and Ms. Mulbeny, but she did not witness any physical

confrontation. [ER 121:10-23; 125:19-126:24; 173:1-15.] She got Dr. TUlner

to sit back down, and he was not doing anything provocative or aggressive.

[ER 174:2-23.] After talking to the parties she left the area and does not

know what renewed the dispute. [ER 177:25-178:20.]

50


Mr. Turner and Ms. Thompson testified that after the initial

confrontation, Ms. Adams turned around and called Mr. TUlner "an asshole"

and told Ms. Thompson she should divorce him. [ER 420:4-19; 468:15-

469:8.] Ms. Adams' own testimony confirms that after the initial

confrontation she turned around in her seat and called Dr. TUlner "an

asshole." [ER 256:2-16; 270:21-273:7.] Ms. Goralska testified that she

returned to a reignited dispute with Dr. Turner standing and swearing at the

two women about their continued talking. [ER 132:7-21.] She never heard

Dr. TUlner threaten anybody and he did not direct any anger or hostility

towards her. [ER 132:7-21; 198:23-25; 217:23-218:12.] Only after she

witnessed Dr. TUlner spit on Ms. Mulberry did she believe that he was

capable of doing physical harm to someone. [ER 134:1-3; 136:3-7.]

Dr. Turner testified and denied most of this conduct, including the

allegation that he spit upon Ms. Mulberry or shoved Ms. Adams. The jury,

having acquitted him of the assault based upon the allegation that he spit on

Ms. Mulberry, appeared to believe at least a portion of his testimony over

that of Ms. Mulbeny and Ms. Goralska. Similarly, while Ms. Adams

testified that Dr. Turner kicked or shoved the back of her seat, the jury

acquitted him of the associated assault charge. The jury's precise

51


deliberations are unknown, but the jury did not believe, beyond a reasonable

doubt, that Dr. TUlner spit upon Ms. MulbelTY or kicked Ms. Adams' seat.

Based upon the evidence presented and the jury's verdict, this case

involves nothing more than a heated dispute between passengers. Ms.

Goralska's fear that Dr. Turner might harm the women was based on an

allegation that the jury found unconvincing. A rational jury would likely find

that Ms. Goralska, who testified that Dr. TUlner never expressed any anger

towards her, would not reasonably fear for her own safety. Additionally, a

rational jury that rejected the version of events in which Dr. Turner spit on

Ms. MulbelTY, the basis of Ms. Goralska's fear for others, would also likely

conclude that Ms. Goralska would not reasonably fear for the safety of

others.

With the sole exception of Ms. Goralska, every witness, including Dr.

Turner, Ms. Thompson, Ms. Mulberry, and Ms. Adams, described the entire

incident as taking place, from beginning to end, within five and fifteen

minutes. Captain Maracchini's testimony also reflects that this incident took

place in a relatively short period of time, as the spitting incident, cockpit

lockdown, and movement of passengers occulTed between two-and-a-half

and three hours prior to landing, which is shortly after everyone says the

incident began.

52


Ultimately, the entire affair was one in which a brief, but heated,

dispute erupted between several passengers, and a flight attendant was

forced to take time to separate the two groups and resolve the situation. In

Meeker, this Court cautioned against applying a 49 U.S.C. §46504 charge to

precisely this type of situation. As Meeker describes, the intimidation

required for a conviction is substantially more than the fact that a flight

attendant took action to resolve a heated dispute between passengers.

Nevertheless, the jury instructions required a finding of intimidation

even absent evidence establishing that Ms. Goralska would reasonably fear

bodily injury, or even a reasonable fear of bodily injury to others, so long as

the jury believed that Dr. Turner's conduct made Ms. Goralska take actions

she otherwise would not have or refrain from actions she otherwise would

have taken, or if his actions interfered with, or lessened, Ms. Goralska's

ability to do anything. The jury instructions required the jury to convict Dr.

Turner based solely upon the fact that Ms. Goralska took time away from

her duties to address his dispute with other passengers. If the jury believed

that Ms. Goralska's performance of her duties was negatively impacted in

any way, the instructions required a conviction regardless of whether Ms.

Goralska would reasonably fear bodily injury.

53 '


The instructions effectively removed from the jury's consideration the

essential factual question at the hemi of the intimidation element of the

offense, and the dilution and removal of an essential element of the offense

clearly had the potential to impact the outcome of the trial in this case.

Finally, because this error usurped an important function that lies squarely

within the province of the jury, it is definitively of the kind that seriously

affects the failness and integrity of Dr. Turner's trial. Therefore, these enors

satisfy all of the requirements of the plain error rule, and Dr. Turner must be

granted a new trial.

2. The District Comi Ened In Refusing Dr. Turner's Request For An Instruction That The Intimidation Of A Flight Attendant Must Be Done Knowingly.


Appellate courts review de novo the district court's interpretation of

the requisite elements of a federal offense, and, where, as here, there is an

objection to an instruction, the omission or misinstruction relating to an

element is subject to harmless-enor review. See United States v. Salazar-

Gonzalez, 458 F.3d 851, 854-55 (9th Cir. 2006). Due process requires a

criminal conviction to rest upon a jury's finding of guilt beyond a reasonable

doubt on each element of the crime charged, and there is concomitant right

to an instruction on each element of the crime. See Salazar-Gonzalez, 458

54


F.3d at 856-57 (citing Winship, supra, 397 U.S. 358; Gaudin, supra, 515

U.S. at 511). A constitutional enor is harmless only when it appears beyond

a reasonable doubt that the elTor did not contribute to the verdict obtained.

See Chapman v. California, 386 U.S. 18,24 (1967); see also Neder, supra,

527 U.S. at 15-16.

b. The District Court erroneously declined to instruct the jUly that Dr. Turner must knowingly intimidate the flight attendant.

Over defense counsel's objection, the District Court removed the

mens rea element that Dr. Turner must knowingly intimidate the flight

attendant. While interference with a flight attendant is a general intent crime

that does not require a specific intent to interfere, the intimidation element

certainly requires a purposeful act, conducted either willfully or knowingly.

In United States v. Bibbins, 637 F.3d 1087, 1092 (9th Cir. 2011), the

defendant was convicted of violating 36 C.F.R. § 2.32(a)(1), a regulation of

the National Park Service that prohibits "[t]hreatening, resisting,

intimidating, or intentionally interfering with a government employee or

agent engaged in an official duty, or on account of the performance of an

official duty." Id. at 1090. The defendant was convicted of violating the

"resisting" offense of the regulation, and argued that resisting contains a

willfulness element that the evidence was insufficient to establish. Ibid. In

55


determining that the resisting offense contained a mens rea element of

willfulness, this COUli noted that all of the alleged offenses contained in the

regulation are actions "that are typically done with purpose." Id. at 1092.

Specifically, this Court stated that 'the 'intimidating' offense probably

contains a willfulness mens rea element because the verb 'intimidate' is

defined as 'to make timid or fearful: inspire or affect with fear.'" Bibbins,

637 F.3d at 1092 (quoting Webster's Third New International Dictionary

1184 (1993 ed.)). While this Court noted that one could be intimidated by

accident, such as the case of person being intimidated by a wild animal, this

Court found it unlikely that the National Park Service would criminalize

accidental intimidation, and determined that the plain meaning of the

"intimidating" offense includes a willfulness requirement. Id. at 1092.

In analyzing 18 U.S.C. §924, which criminalizes the willful

transportation of firearms across state lines, this Court associated the

willfulness requirement with knowledge of the nature and quality of the act,

and determined that in order to satisfy the willful component of such an

offense, the defendant would have to know that his transportation of

firearms was unlawful even if he did not know what statute he violated.

United States v. Hernandez, 859 F.3d 817, 819 (9th Cir. 2017). Here too, the

defendant must have knowledge that his actions would be intimidating in

56


order to satisfy the willfulness requirement. The Eleventh Circuit

instructions upon which the parties based their proposed joint instluctions, as

well as all subsequent Eleventh Circuit instluctions, includes a knowledge

requirement for the intimidation element. See Pattern Criminal Jury

Instructions, 11th Cir., 103 (2003); 118 (2010); 118 (2016).

In Meeker, this Court discussed the intimidation element of a charge

of interference with a flight attendant by reliance on cases involving the

taking of property by intimidation. See Meeker, supra, 527 F.2d at 15 (citing

Alsop, supra, 479 F.2d at 66-67). In United States v. Selja, 918 F.2d 749,

751 (9th Cir. 1990), this COUli explicitly held that a conviction for banle

robbery, the same statute at issue in Alsop, requires willful conduct. Federal

courts, including the Supreme Court, have consistently held that a defendant

cannot be convicted of taking property by intimidation if the defendant did

not know that his actions were intimidating. See Carter v. United States, 530

U.S. 255,268 (2000) (holding that §2113 requires "proof of general intent

that is, that the defendant possessed knowledge with respect to the actus reus

of the crime (here, the taking of property of another by force and violence or

intimidation)") (emphasis altered); see also United States v. McNeal, 818

F.3d 141,155 (4th Cir. 2016) ("to secure a conviction ofbanle robbery 'by

intimidation,' the government must prove not only that the accused

57


knowingly took property, but also that he knew that his actions were

objectively intimidating'); United States v. McBride, 826 F.3d 293, 296 (6th

Cir. 2016) ("Intimidation concerns whether an ordinary person would feel

threatened under the circumstances ... but the prosecution must prove that

the defendant possessed 'general intent-that is ... knowledge'-with

respect to taking the property by intimidation ... The defendant must at least

know that his actions would create the impression in an ordinary person that

resistance would be met by force.") (internal citations omitted); United

States v. Salinas, No. 1 :08-CR-0338-LJO-SKO, 2017 U.S. Dist. LEXIS

95906, at *11-12 (E.D. Cal. June 21, 2017) (same); United States v. Torres,

No. 1:11-CR-0448-LJO-SKO, 2017 U.S. Dist. LEXIS 13361, 2017 WL

431351, at *3-4 (E.D. Cal. Jan. 31,2017) (same).

Similarly, here, while there need be no specific intent to interfere, the

intimidation must be willful, satisfied by evidence that Dr. Turner knew that

his actions were objectively intimidating to the flight attendant. The District

Court recognized this to be true with respect to Dr. Turner's motion for a

judgment of acquittal, spending significant time articulating this very fact to

the Government when discussing the absence of any evidence that Dr.

Turner knowingly intimidated the pilot. The Government proposed alternate

58


jury instructions that did not contain a knowing requirement, arguing that

knowledge was not specified in the statute.

The District Court nevertheless concluded that there would still have

to be some volitional act that Dr. Turner knew, or reasonably should have

known, would intimidate the pilot. The District Court looked to the jointly

proposed instluctional definition of what constitutes intimidation, stating

that the "to make" the pilot or flight attendant do, or not do, something

constitutes purposeful action, and concluded that the intimidation element

requires either purpose, knowledge, or a reasonable expectation that Dr.

Tmner's words or actions would affect the pilot. Ultimately, the District

Court dismissed the portion of Count One associated with the pilot for

insufficient evidence of such purpose. However, the District Court, over

defense counsel's objection, refused to provide a "knowingly" instruction.

As the discussion of the District Court and this Court in Bibbins

correctly determined, intimidation must be done purposefully, rather than

accidentally, and as federal courts have recognized, willful intimidation

requires knowledge. The District Court erred in failing to include an

appropriate mens rea instruction that the intimidation is done knowingly,

and this error was not harmless beyond a reasonable doubt. See Salazar

Gonzalez, s'upra, 458 F.3d at 58. The phrase "to make" does not cure the

59


absence of an appropriate mens rea requirement. As Bibbins acknowledged,

a person can be made fearful accidentally. The removal of the knowing

requirement allowed the jury to convict Dr. Turner if his words or conduct

affected the flight attendant in any way listed under the various definitions

of intimidation, even accidentally or unknowingly.

Even if the inclusion of the phrase "to make" adequately relayed the

mens rea required to support an intimidation element, no such language

proceeded the most egregious variation defining the phrase intimidation,

which was "any words or actions that ... interfere with or lessen the flight

attendant's ability to do something." Rather than necessitating evidence

requiring that Dr. Tmner knowingly interfered with or lessened the flight

attendant's ability to something, which would itself be an en-oneous

definition of the term intimidation, the removal of the term "knowingly"

omitted the only protection Dr. Turner had against any interference, even

accidental interference, constituting intimidation.

As discussed above, the jury did not believe beyond a reasonable

doubt that Dr. Turner assaulted the two women, even with Ms. Goralska

testifying that she witnessed Dr. Turner spitting on Ms. Mulberry. This

determination reflects that Ms. Goralska's version of events wasn't

sufficiently credible. Nevertheless, without a knowing requirement, any

60


action that affected Ms. Goralska's duties in any way, even accidentally,

constituted intimidation under a definition without a knowing requirement,

compounding the enor existing in the definition of intimidation. Given the

testimony by Ms. Goralska and Captain Maracchini that the operations of

the aircraft were impacted by Dr. Turner's dispute with the other passengers,

there is a substantial chance that the jury concluded that Dr. Turner

unknowingly intimidated Ms. Goralska under one of the various broad

definitions of intimidation.

Additionally, just as the parties' proposed joint instruction included

the mens rea element that the intimidation be done knowingly, this element,

in turn, would attach to each instruction defining the term intimidate,

including all of the variations discussed above. By removing the term

"knowingly", the District Court altered the definition of all of the variations

defining the term intimidation previously agreed to by defense counsel. For

this reason, defense counsel's objection to the removal of the term

knowingly should also serve to preserve an objection to the definition of

intimidation without the "knowingly" element associated with it. Therefore,

each of the enol'S addressed above should be analyzed under the harmless

enol' standard.

61


3. Dr. Turner's Trial Counsel Was Ineffective In Failing To Object To The Alternative Definitions Of Intimidation.


This COUli should find that trial counsel's agreement to the proposed

joint jury instructions that included the inaccurate and expansive version of

the term intimidation constituted ineffective assistance of counsel. Under

Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove ineffective

assistance of counsel, the defendant must show that (1) his attorney's

perfOlmance was objectively unreasonable under prevailing professional

norms and (2) that he was prejudiced by counsel's deficient performance.

The two-prong Strickland standard applies to situations where trial counsel

fails to request adequate and appropriate jury instructions. See, e.g., Pirtle v.

Morgan, 313 F.3d 1160,1169 (9th Cir. 2002)

While it is recognized that "[ c ]laims of ineffective assistance of

counsel are generally inappropriate on direct appeal," there are two

exceptions to this rule within the Ninth Circuit. United States v. McKenna,

327 F.3d 830, 845 (9th Cir.2003). These exceptions arise "(1) when the

record on appeal is sufficiently developed to permit review and

determination of the issue, or (2) when the legal representation is so

inadequate that it obviously denies a defendant his Sixth Amendment right

to counsel." Id. (quoting United States v. Ross, 206 F.3d 896, 900 (9th Cir.

62


2000)).

b. Trial counsel provided ineffective assistance by failing to object to overly broad jury instructions.

Dr. Turner's trial attOlney, Benjamin Ignacio, Esq., failed to object to

an instruction defining intimidation in a manner that drastically expanded

the scope of his client's criminal liability beyond that supported by law. The

intimidation element of the offense was defined to include conduct that did

not require a reasonable fear of bodily harm, included fear of harm solely to

another person, and broadly defined intimidation to include any action that

satisfied the interference element of the offense, effectively eliminating the

intimidation element' from the jury's consideration.

Most importantly, and puzzlingly, no version of the Eleventh Circuit

instructions or Ninth Circuit case law extends intimidation to include "the

use of words or actions that ... interfere with or lessen the flight attendant's

ability to do something." Cf Dkt. 31, p. 5; Pattern Criminal Jury

Instructions, 11th Cir. 103 (2003); 118 (2010); 118 (2016); United States v.

Meeker, 527 F.2d 12, 15 (9th Cir. 1975). This alternative definition of

intimidation is the most problematic, and it appears to have been adapted

directly from the language of the interference element of the offense,

subsuming the dete1wination of whether the intimidation element is satisfied

into the detelwination of whether the interference element is satisfied.

63


Unsupported by any case law or legal standard, trial counsel effectively

agreed to the elimination of an element of the offense. Trial counsel's failure

to object to the enoneous definition was objectively unreasonable, and the

submission of a jointly proposed jury instruction containing the

misinstructions is clear from the record, and therefore properly addressed on

appeal.

The failure to object to the erroneous jury instruction was prejudicial

to Dr. Turner, and is the type of error that is so inadequate that it deprived

Dr. Turner of his Sixth Amendment right to counsel. As discussed above in

detail, the misdescription of the intimidation element of the offense went to

the very hemi of the case against Dr. Turner. Ms. Goralska testified that Dr.

Turner's complaints were never directed at her, and that she never heard him

threaten anybody. [ER 132:7-21; 198:23-25; 217:23-218:12.] Her fears for

the other passengers manifested when she witnessed Dr. Tmner spit on Ms.

Mulberry, an allegation that the jury rejected. [ER 134:1-3; 136:3-7.] At that

point, she concluded that the situation escalated to the point where she

feared that he would harm the other passengers, requiring them to be moved

and for the cockpit to go into a lockdown mode [ER 134:1-137:25.] Captain

Maracchini's testimony also reflects that the escalation from a dispute

between passengers to a dispute involving a physical confrontation is what

64


initiated the cockpit lockdown. [ER 289: 11-290: 19.]

The evidence supporting the alleged assault against Ms. Mulbeny was

the most significant evidence supporting a finding that Dr. Turner's conduct

constituted intimidation of the flight attendant based upon a fear of bodily

injury. Having rejected the charges that Dr. Turner assaulted the other

passengers, the incident involved nothing more than a heated dispute

between passengers.

Nevertheless, even absent evidence that it was reasonable for Ms.

Goralska to fear body injury to herself, or even anyone else, the instructions

required a finding of guilt if the jury believed that any of Dr. Turner's

actions interfered with, or lessened, her ability to do her duties, including

taking time to resolve a brief, but heated, dispute between Dr. Turner and

other passengers. This erroneous instruction substantially reduced the burden

of proof required to obtain a conviction in this case, and there is a reasonable

chance that an appropriate instruction, limited to a fear of bodily harm,

would have resulted in a different verdict.

Trial counsel's representation fell below an objective standard of

reasonableness because, had counsel objected, and had the erroneous

instruction not been given, there was a reasonable probability that the result

of the proceedings would have been different. Under a correct definition of

65


intimidation, limited to situations involving a reasonable fear of bodily

injury, a jury would be unlikely to conclude that a heated dispute between

passengers, in which the flight attendant did not claim to hear any threats of

violence, and in which the jury rejected the allegations of assault, would

cause her to reasonable fear bodily injury.

B. Retroactive Misjoinder Leading To Prejudicial Spillover Of Inadmissible Evidence Occurred After The District Court Dismissed The Pilot From The Interference With A Flight Crew Member Or Flight Attendant Count.

1. Standard of Review.

A jury instruction to which there is no objection at trial is reviewed

for plain error. United States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir.

2017).

2. The District Court Did Not Provide The Necessary Limiting Instruction In Order To Avoid Prejudicial Spillover From The Dismissed Theory Of Liability Relating To The Pilot.

Retroactive misjoinder, sometimes called prejudicial spillover, "arises

where joinder of multiple counts was proper initially, but later

developments-such as a district court's dismissal of some counts for lack of

evidence or an appellate court's reversal of less than all convictions-render

the initial joinder improper." United States v. Lazarenko, 564 F .3d 1026,

1043 (9th Cir. 2009) (citing United States v. Vebeliunas, 76 F.3d 1283,

1293-94) (internal citations omitted.)

66


This Court miiculated a five factor test to determine whether a

defendant is prejudiced by evidence introduced to prove now dismissed

charges, and whether this prejudice entitles the defendant to a new trial. The

five factors include (1) whether the evidence was so inflammatory that it

would tend to cause the jury to convict on the remaining counts; (2) the

degree of overlap and similarity between the dismissed and remaining

counts; (3) a general assessment of the strength of the government's case on

the remaining counts; (4) whether the trial court diligently instlucted the

jury; and (5) whether there is evidence, such as the jury's rendering of

selective verdicts, to indicate that the jury compmimentalized the evidence.

Lazarenko, 564 F.3d at 1044 (citing Vebeliunas, supra, 76 F.3d at 1293-94;

United States v. Cuozzo, 962 F.2d 945, 950 (9th Cir. 1992).) '''Whether the

evidence is easily compartmentalized is of foremost importance' in

determining whether evidentiary spillover was prejudicial; '[ e ]vidence is

susceptible of compartmentalization when the acts constituting the crimes ..

. are discrete.'" United States v. Inzunza, 638 F.3d 1006, 1016 n.2 (9th Cir.

2011) (quoting United States v. Duran, 189 F.3d 1071, 1081-82 (9th Cir.

1999)).

In the present case, the jury heard substantial prejudicial testimony

admitted in support of a dismissed alternative theory of criminal liability as

67


to Count One. Specifically, the jury heard substantial testimony that the

incident interfered with the pilots' operation of the aircraft as an alternative

theory of criminal liability. Ultimately, the District Court dismissed Count

One insofar as it related to the pilot, but did not provide a curative

instruction to the jury to address their treatment of the evidence supporting

the dismissed theory of liability.

The evidence introduced in support of the government's theory that

Dr. Turner interfered with Captain Maracchini seriously prejudiced Dr.

Turner with respect to the allegation peliaining to Ms. Goralska. The jury

heard substantial testimony by Captain Maracchini and Ms. Goralska related

solely to how the dispute seriously impacted the pilots and their operation of

the aircraft. The testimony included extensive discussions of the security

measures employed by Captain Maracchini, involving the initiation a level

two cockpit lockdown for the remainder of the flight, cutting the pilots off

from the rest of the aircraft and limiting communication between the pilots

and the flight attendants.

The jury heard testimony about the impact the cockpit lockdown had

on the pilots of the aircraft, preventing them from taking mandatory rest

breaks, receiving meals, or even going to the bathroom for the remainder of

the flight. Captain Maracchini testified to his medical history, and described

68


how the incident caused him senous physical discomfOli, pam, and a

reduction in cognitive skills. The jury heard testimony that the denial of rest

breaks causes pilot fatigue that can act like alcohol on the body, as well as

testimony related to altitude related dehydration, the rarity of a cockpit

lockdowns, and even a reference to the security measures being adopted

after the events of September 11, 2001. This evidence was entirely unrelated

to the alleged intimidation of Ms. Goralska or interference with her duties,

but the serious nature of the circumstances involving the pilots would be

both confusing to the jury and would seriously prejudice the jury's

determination of Dr. Turner's guilt as it related to the alleged interference

with Ms. Goralska.

As to the second factor, the dismissed portion was both similar and

dissimilar to the remaining allegation. The Government could have easily

charged these as separate counts allegation two violations of the same

statute, but introduced the evidence jointly in support of Count One to

establish that Dr. Turner interfered with Captain Maracchini andlor Ms.

Goralska. On one hand, the dismissed portion and the remaining portion

were very similar. The District Court dismissed only a particular theory of

liability on the same Count that went before the jury. On the other hand, the

dismissed portion and the charge before the jury were distinct theories of

69


liability that would require the jury to separately determine whether Dr.

Turner intimidated and interfered with the pilot and/or the flight attendant.

Without a curative instruction, the overlap is particularly problematic

and confusing because the evidence supporting the distinct allegations does

not involve discrete acts by the defendant. Instead, the same actions

supported discrete overlapping theories of liability, supported by evidence of

the effect of that conduct that is not easily distinguished by a jury. For this

reason, the evidence supporting one of the distinct allegations is just similar

enough to the other allegation to cause a jury to confuse and amalgamate the

evidence supporting the alternative theories. The natural inclination to join

together the two separate allegations is illustrated by the Government's

decision to charge the two separate and distinct allegations together in one

count.

As to the third factor, the Government's case on the remaining theory

of liability was not particularly strong. The Government's case relied

substantially on the allegation that Dr. Turner assaulted other passengers,

which was the basis for Ms. Goralska's fear. The jury rejected this

allegation, thereby rejecting a substantial portion of the case against Dr.

TUlner. The remaining evidence involve only a short verbal dispute between

passengers, a flight attendant having difficulty getting one passenger to sit

70


down, and the need to change passenger seats to resolve the dispute, but Ms.

Goralska testified that her duties included dealing with disruptive passengers

and passenger disputes. The testimony regarding the details of the cockpit

lockdown served to inflame the jury's perception of Dr. Turner's guilt. Even

though the jury did not believe that Dr. Turner assaulted the other passengers

as alleged, the severity of the impact the verbal dispute had on the pilots'

operation of the aircraft, and the health and comfort of the pilots, would have

a prejudicial effect on the jury's ability to determine his guilt. This is

particularly true given the erroneous instruction that any conduct that

interferes with a flight attendant constitutes intimidation.

As to the fourth factor, the District Court did not provide a curative

instruction to the jury that would mitigate the prejudicial effect this

extraneous evidence would have on the jury's determinatiOll of guilt as it

applied only to Ms. Goralska. Instead, the District Court merely changed the

nouns and pronouns in Count One to reference only a flight attendant. This

alteration was insufficient to cure the prejudicial nature of the jury's

exposure to confusing and inflammatory evidence illustrating the serious

impact that the disruption had on the pilots' operation of the aircraft, or the

personal impact that it had on the health and comfort of Captain Maracchini.

Even a properly and diligently instructed jury would have difficulty setting

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aside the prejudicial nature of this evidence. The jury should have been

informed of the distinction between the allegations of interference with the

pilot and the flight attendant, and instructed that evidence of interference'

with the pilots is not a substitute for evidence of interference with the' flight

attendant. Without such an instruction, the jury would be confused by what

to do with evidence of serious interference with the pilots, including nearly

all of Captain Maracchini's testimony, which falsely appeared to be relevant

to the question of Dr. Turner's guilt.

As to the fifth factor, there is nothing in the record to suggest that the

jury compartmentalized the evidence. There were no curative instructions,

and the Government did not charge the two distinct allegations in separate

counts. Furthermore, the evidence is not easily compartmentalized. Dr.

Turner's alleged conduct supporting each of the two allegations did not

involve discrete acts. Under both theories of liability, the charge stems from

the same alleged dispute with other passengers. The only distinction arises in

the determining whether the conduct interfered with and intimidated the

pilot and/or flight attendant, but the acts support both theories of liability are

identical. The evidence of interference with the pilot, particularly given the

absence of a limiting instruction and the broad instluctions regarding what

constituted intimidation, was confusing, inflammatory, and highly

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prejudicial to Dr. Turner's defense of the charge of interference with a flight

attendant.

v.

CONCLUSION

For the aforementioned reasons, Dr. Turner's appeal should be

granted in all respects, and Dr. Turner should be granted a new trial as to

Count One.

Dated: January 5, 2018 Respectfully submitted,

By:/s/David J. Cohen DAVID J. COHEN, ESQ. BAY AREA CRIMINAL LAWYERS, PC 300 Montgomery Street, Suite 660 San Francisco, California 94104

Attorneys for Defendant-Appellant William Clark Turner

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STATEMENT OF RELATED CASES

Pursuant to Ninth Circuit Rule 28-2.6, Appellant asserts that he has not

identified any related cases cunently pending before this Court.

Dated: January 5, 2018 Respectfully submitted,

/s/ David J. Cohen DAVID 1. COHEN, ESQ.

AttOlueys for Defendant-Appellant William Clark Turner

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No. 17-10299

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, D.C. No. 16-00207-S0M

v.

WILLIAM CLARI( TURNER,

Defendant-Appellant.

BRIEF FORMAT CERTIFICATION PURSUANT TO CIRCUIT RULE 32(a)(7)(C)

Pursuant to Ninth Circuit rule 32(a)(7)(C), the attached Brief of Appellant is

double-spaced, was typed using amonospaced typeface, Times New Roman (no more

than 10 Yz characters per inch), and contains 13,868 words.

Dated: January 5, 2018 /s/ David 1. Cohen DAVID 1. COHEN, ESQ.

Attorneys for Defendant-Appellant William Clark Turner

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