thank you your honor and may please the court there are two independent reasons why this court should reverse mr petras this conviction first the prosecution treated the two potential jurors who were african american differently than it treated white jurors who gave identical responses to church questioning is that is is is is that a fair issue to raise where there were only two black members and then there are absolutely your honor it is a one hundred percent of them were excluded and we've shown just based on statistics alone you would not expect randomly selected legitimate reasons to strike both of them in a jury panel of this size with only six strokes the second reason this court should reverse is because the district court utilized the definition of intimidation that has been unequivocally overruled and rejected by the united states supreme court and this definition permitted conviction for instance if the jury believed that mr petras called one of the attendan racist or a racist pig and into flight attendant felt fear in response i thought our court already upheld that particular instruction on intimidation and the court did in united states which is hicks your honor in one thousand nine hundred two but subsequently the supreme court which is the superior court has said what the government is allowed to criminalize in the form of intimidation it's in other words for jenny versus black that speaks unequivocally to the limits on a legislature's power to prohibit intimidation and that was based on constitutional limits and was specifically dealing with a criminal statute where the actis radius is an act of intimidation so on the bets in point your honour's under this court's decision in reverse is quarterman a conduct a careful analysis and how often does a public defender attack judge fitzwater on at some grounds or any federal any of our federal district judges it's been a long long time since i've seen that challenge  we are attacking the prosecution strike here more than the judges strike i will say the judgment of our judge yeah but the third prong a batson is the judge the judge looked at all the circumstances and made a fact finding did he not that the it was not race motivated taking the court at his word was the comparatives that you have chosen do not have both of the qualities in conjunction in other words that we've shown you first of all that's wrong as a matter of law and we show you secondly that if you look at jurors twenty and thirty three in fact those jurors did have both of the qualities and the prosecution neither struck him nor even subjected him to further questioning which one to read is evidence that these reasons are themselves protection so if you compare the responses of juror twenty eight and thirty three and you see if the government's willing to accept them but not willing to accept juror number twenty eight we think there's no other conclusion but that these reasons given were pretextual moving on to the second point your honour's on the definition of intimidation the supreme court has said what intimidation means and this court must follow that ruling there are several reasons why that's the case first of all because congress is required to give defendants fair notice of where the line is between permitted and prohibited conduct secondly the principle of consistent usage in other words there are lots of statutes throughout the federal code where congress has used the word intimidation in close proximity to assault as it is under the statute and this court very recently has said intimidation means at least an implicit threat of the use of physical force the problem in this case is using the broader definition it permits conviction for fear that the flight attendants felt based on things that the defendants didn't even know about and that distinguishes this case from picks as well and i think that's also could crash it and he said i'm going to continue doing it you can't stop me in other words that's affectively at least an implicit threat i'm going to continue to engage in conduct that puts this aircraft at risk whereas in this case the jury there is nothing in the jury instructions themselves that this is the jury didn't find that the flight attendant was intimidated by the use of the word racist or the more colorful epithet racist  well i mean let me well i don't think race is the only thing they hang their hat on as far as intimidation goes but the statute says an individual on an aircraft to buy assaulting or intimidating a  flight attendant interferes with the formants of the duties lessens the ability of lot assaulting or intimidating are you writing intimidating out of the statute to include assaulting not only honor because intimidating has the definition as it doesn't all these other federal statutes that you think placing in what you like the intimidation has to be something that is perceived by an objective observer as a threat or an expression of intent to engage in violence that precisely what one of the stewardesses testified to you are there was testimony as one fellow is six foot four two hundred well over two hundred pounds and he's trying to strain again and see your honor there was testimony to that effect the problem here is that the jury was not required to believe that testimony not only that there was contradictory testimony from the two passengers who were sitting in the row immediately in front of mr petras who observed it being in their entirety in the said no such thing happened in fact both of these passengers confronted the flight attendants and said if you would just leave these young men alone you wouldn't have a problem in other words the point where the third flight attendant comes back and says well another passenger has tattled on you i know that you called my colleague a racist pig and that's unacceptable these passengers that these young men were defending themselves they were they were they were upset and angry about this they felt they were being treated unfairly but they said it was nothing intimidating about with that there was nothing that was frightening about it in other words if you're sitting i mean you know you're sitting in a seat in front of other people and it's very hard to see what's going on behind unless it's a kid kicking you in the back of the seat you know are lost you go out of your way to turn around and put yourself in the melee it's very hard to interpret what's going on  and your honor mr garland testified that he did in fact turn around he was watching it because he heard what was going on he thought they were being treated unfairly and you can see in a still that was provided in his defense exhibit seven one which is from the body can you can see in mr garland's tell enough you can actually see his eyes peeking above the seat in other words he's completely able to observe and hear what's going on and he says there wasn't threatening about this at all but judge jones if they did if the jury had been properly instructed given the supreme court's definition of intimidation and they were competing narratives basically in the jury believe there's instead of ours that would be too bad for my client but the jury wasn't properly instructed in other words the instructions over our strenuous objection permitted the jury to convict on the basis of any number of theories whether it's based on constitutionally protected conduct or conduct that would be up be beyond the reach of the statute as congress intended in other words this court should follow the explicit holding  to the mental state of an intent to intimidate it just a court didn't do that and i think this court understood this because you can see in the charge conference where he says i just want to be sure that this is the definition the government wants in other words you're about to make this bed we're going to go forward on this definition it's different it's broader than what the supreme court has said and the government said absolutely they did not want this to be a specific intent crime with an intent to intimidate and they did not want the jury to be asked to  words or conduct conveyed an intent to engage in violence so your honor whether it is under the baton point because jurors are twenty and thirty three if not several other jurors who testified similarly about flight experience in other words the record shows that those reasons were pretext will or under the definition of intimidation itself as a supreme court has held that it means something narrower than the definition this court adopted several years prior good morning your honour's may it please the court i'm blair oscar sent here on behalf of appellant with song shocker and the principal issue i will address here today is that there is insufficient evidence to find beyond a reasonable doubt that mr shakur by intimidation interfered with the performance of the flight crew's duties no reasonable jury could have found that mr shockers intimidation interfered with duties related to safety as mr wright has pointed out it is our view that hicks has been overruled with regard to the definition of intimidation but this court's instruction with regard to interference with duty and the purpose of the statute is still good law excess the purpose of this statute is to assure the utmost in their lives safety so that even the most mundane duties that implicate safety cannot be taken for granted in hicks those defendants were convicted of playing a radio that literally interfered with the navigation equipment on the plane clearly that implicated the pilot's duty to safely fly the plane well i'm sorry but the statute itself only talks about interfering with the performance of the duties of the member or attendant or lessens the ability of crew  airplane safety in this case the defendant's arky used of interfering with the duty to provide drinks and snacks clearly that it was more than that on this record mr shakur was accused  duty that the government has alleged to you know feared with was the inability of the flight attendants to provide drinks and snacks well we have to look at the closing argument because that government side testimony beyond that but is he the one who's six foot four no your honor he's about my height is smaller him ok the government's brief says also that mr shakur interfered with the duties to take care of the passengers and monitor the cabin but the evidence they cited from the record again goes to service and attention with this regard with this with goes to the flight attendants duty to provide refreshments even if this court finds that this this statute is designed to assure drinks and snacks on airplanes it was not mr shockers intimidation of the flight attendants that prevented them from serving drinks and snacks it was the flight attendants continual engagement with this group their continual return to the group to prove that they were not races after the comment racist pig was made well didn't a lot go forth transpire before that wasn't a racist pig comment more or less at the end of their interactions i mean that calling he said because they will serve me drinks i think they're racist i think southwest is racist i think you're a racist pig so then she left and then another flight attendant approached and wanted to know why did you call the other flight attendant a racist pig are any of these flight attendants not i mean are they why are they i mean did racism mean anything particular in this context these defendants are of iraqi descent mr i understand that what about the flight attendant the flight  so for a middle eastern to call a white person races you know both being what he called not nazi medic but you know indo european doesn't make much sense but anyway these these this group was felt that they were not being served drinks because they were being treated in a racist manner and when they complained about it these flight attendants continued to come back over and over and over three or four times to prove that they were not racist and to argue about racism that is the reason they could not get on with serving drinks and going about their business because they were argued with the group not it was anything that mr shakur did to intimidate them interfered with any duties related to safety no evidence that his conduct prevented these flight attendants from doing their jobs was he the one sitting in the middle of the seat or at the pages seven seventy five to seventy seven the first flight attendant to approach the man who was named victoria clarke said both shopper and petrus lunged at when she refused to give their friend an alcoholic drink well now that star i mean it's hard to lunch when you got your seat belt buckle they attempted to ban guns as much as they could with their seat belt yes your honor but didn't i mean didn't this fracas start before the plane took off it did and i look i want to point that in a lot of the cases where this statute has been charged there is a escalating behavior on the part of the defendants and it will start with things like not obeying safety instructions during boarding or rude behavior but it escalates and escalates to a point where there is almost always yelling obscenity and coupled that with aggressive physical conduct and that is what happened and you're right judge jones that the racism and the racist pig statements that were made those were the crowning blow those were not at the core of the government's case they're part of what happened and they did contribute to intimidation but the intimidation was that core aggressive physical conduct coupled with loud obscenity and other things that was directed towards all three of the flight attendants now when clark was being one shot by this one it by these men she testified that she was afraid and she thought she was going to get hurt that's a record seven eight she put her hand held drink device down in the seat in front of her the empty seat that was vacated by one of the witnesses who testified for the defense so that she could have both hands free to defend herself  on page seven seventy nine then she started scanning the planning to find how she looked around to see if they were able body passengers that would be able to assist her in the case in the event they attacked her she testified that that was the scariest point on the flight for her was the point where both shakur and petraeus attempted to lunge at her that's on page seven ninety four there is similar testimony by the other two flight attendants that day that that happened when they approached the man and tried to basically get a commitment from the men that they would calm down the stop acting this way so that everyone should continue on the flight the men acted the opposite and were incredibly physically aggressive and if you look at the government's complaint the original finally of the government in this case mention thing we are not talking about this is not a free speech case this is a case about aggressive physical conduct and the defendant at trial and now the opponents on appeal are running from their conduct they are making this into a case that it really is not now in terms of i want to address because we're on the subject of the defendant's conduct obviously there was a lot of intimidation that was happening there was also interference it is not true and it does not correctly reflect the record to say that the only duty that these defendants interfered with was drink and snack service that just ignores the record clark said i was not able to take care of the other passengers on the aircraft page seventy four attendant bergrin she's the last one to have approached these men actually told clark to stay up front for her own safety she actually put one of the three flight attendants out of commission bergen is the lead attendant she put clark out of commission because she was so afraid of clark being around these men so you had three flight attendants in the cabin instead of them too instead of the normal three that's on page eleven thirty three then why isn't it rouge also said we weren't able to get anyone on the aircraft any attention other than them what if someone had  a medical emergency what if the fight had broken out of out in the point of talk to passengers who were unrelated to the people issue these women were tasked as the only people to keep order on this plane to take care of the passengers on the line we know that after nine eleven the pilots can't leave the cockpit for any reason there were three women who had to take care of one hundred seventeen people forty throughout thousand feet and they were that day and one of them was put out of commission the others were afraid of these men and they were not functioning normally now when you say these men were you talking about these two or the fact that there were six altogether and six in two rows right there were and so but the government picked on these two as having the most you know the most virulent become doctors he did and in terms of the jury the allegation of the jury didn't understand what the government's theory was and whether the flight attendants were afraid for their physical safety or could've been afraid of anything else it's clear because the way the jury the jury is just turning it into four defendants obviously and those were the two the had the less aggressive physical conduct they had more of the words one of those defendants who was acquitted was the one who gave the scary gestures and threats to the passenger tiffany dirge who was sitting across the aisle from his row but that they didn't directly threaten or physically at physically aggressive towards the flight attendants in the same way that petraeus and shakur did and clearly the jury understood that that was what it was tasked with deciding and it found those two who were most at fault guilty why did this trial critic eight days well the evidence i think took only about five days i think there were some deliberations and there might have been an weekend in there your honor i'm not exactly sure but there was a lot of testimony by all three of the flight attendants and there actually were more witnesses called by the defense the normally is and most of them were not helpful to the defense but they called a lot of the officers who came to respond after the flight had landed in an attempt to suggest that the conduct at issue that the men were that the reason that the airplane was diverted was not very serious conduct because they were trying to get the police officers to say what they had heard happened on the plane whereas we had you know almost everyone who had been on the plane testified what about the two i mean did you put did the government put on passengers or did it was just the defense to put on pass and you know we we put on and the only passengers who could see what was happening and that was tiffany dirge that was caitlin o'sullivan that was another caitlin rose was her last name and she was fine with tiffany jurors and those women all testified to what they saw in the aggressive physical behavior that they saw the defendants of the two at issue here showing exhibiting towards the flight attendants now the only two passengers testify for the defense were the two that were sitting in front and at least one of them testified that she she admitted on cross examination that was the female passenger that you couldn't really see what was going on as well if you're sitting in front of someone as behind it's possible that might have heard some of the words that were being changed from the flight attendants and the men i think would not have seen and they didn't testify just seeing the physical contact that the men engaged in with these flight attendants where is all three of the passengers who were able to see testified to that conduct in that it was scary and intimidating they mention the lunging they mention getting up in the flight attendants faces things like that what do you what's your why would the virginia be black not raise some doubts about our picks and struck the region in versus black to assume the district judge ruled that he did yes he rejected the idea well let's go back to what judge for sort of was thinking at the time he had a case directly on point that dealt with the definition of intimidation that this court had bl hicks and then you have another definition that's never been used in a case under the statute and in fact has really only been happened to other cases that have involved symbolic speech and things of that nature like cross burning and so he looked at the definitions that word issue and he said i really have to go with the hicks definition because that's the one that applies the statute and and that's exactly what is at issue here i have some distinctions based on well actually i i want to point out to the two other circuit  redefinition continues to be the only definition of intimidation that's applied in this context so that the genius of black was a pure speech case and also you know i don't think there is any real problem here with having a different definition of intimidation when it comes to what intonation might might constitute if you're talking purely about what the first amendment would protect all the time everywhere and that's all that original versus black was saying that what we're dealing statutory definition it's the definition that makes the most sense in the context of the particular means of travel that's at issue in the statute which is air travel when you're up in the sky the very fragile environment and it's black talk in terms of this is limited to symbolic speak now it's just the context in which the saying that was made your own or dead but i do think that they were the it's clear from this the case that it was not addressing a type of intimidation like what hicks described which was the combination of verbal or expressive activity and not expressive physical conduct in fact what hicks said was  statute is not simply associated with a type of speech but it includes not just beach conduct as well in fact it encompasses only a relatively narrow range of speech which will frequently be a can comment and of an intimidating conduct that's six and nine seventy two so we have a different sort of type of activity and of course we know it's different from the fact that it's period with assaults in the statute so it's something that is related to assault and assault is of course a physical thing i'll also defines intimidation for purposes of what is always protected by the first amendment hicks found that there that even under strict scrutiny some types of speech that are ordinarily protected can can be regulated under either the continental time placed me in a restriction or i guess here it would be it could you could construe for just for purposes of argument what happened here is a content content based restriction and hicks also found that that whether the type of intimidation it issued was protected by the first amendment it is it is a law allowed to be regulated under this  so i want to just quickly move to the babson issue because there are certain comments made by the opponents the earlier just not true one was that the sum of the jurors gave identical answers the jurors that issue the ones to which they now point did not give identical answers to the ones who were struck by the prosecution starting with juror number twenty six that was the female who had never flown before she was the only person in the main jury pool who had never flown before no other person had ever flown before in that jury pool and obviously of paramount interest to the government was whether people had flown before whether they understood what the terminology was we're talking about what occurs during commercial flight what is the safety instruction on a flight what's of overhead then you know what are the what are the seat belts look like how close are you to the flight attendant when she's taking your drink order to help push for you to the people who are cross to rose from you or the people in front of you and if you have someone who's never traveled in that context they're not going to understand what happened they're also not going to understand what appropriate conduct would be or intimidating conduct might be in the context of an airplane the only other person who could have conceivably ever been in any jury pool was the last alternate in the alternate pool and that was juror number forty three the government chose to strike the first alternate an alternate pool for another reason the reason itself is not in the record but i mention my very fit was because it was she was unemployed but the important thing about that is the government wanted to use a strike on an alternate who would be most likely to get on the jury if that was necessary and number forty three was the least likely of any alternate to get on the jury judge fitzwater did unlike what opponents argue did find in a credibility determination that the government was telling the truth about the strike that is what you have to do and the third prong of bats and the third stage of batson the district judge is tasked with deciding is the government's explanation credible and that is what he did he found no and i quote purposeful discrimination on the part of the government oh often our bets and challenges raise and federal district court exceedingly heard of one of them is just it's water so the second juror at issue was juror number twenty eight and he was the man who had only on once before he was the only person in the record to be identified as having only flown once before that immediately raised the government's alarm about him and then what also raised alarm was his i would say extreme unusually constrained views towards immigrants muslims of the wall different things like that he was the only person to answer is to use a for questions that the defendant the defense asked the jurors in a way that suggested that he  did not like muslims for example and in particular muslims he answered one specific question in a way your defendants are muslims they're persecuted christians exactly so i know i know and at first you think how does this connect well the reason it connects is because of the history of what happened with the government in this case the government was very alarmed at the idea that the defense would use the sympathetic background of the defendants as persecuted christians  fled islamic extremists in the middle east so they were looking they did not want people who were just against muslims to be on the jury because they thought it could mean that they would give undue sympathy towards these people who were who had to leave their homeland and can't come to the united states and had some very bad things happen to family members and other people they knew all they were in iraq now the government as i point out my brief filed a motion in limine e on this basis before border was a few days before dinner asking that the defense not be allowed to go into those facts at trial and it was denied and so just a couple of days after it was denied is when bordighera curds the government was set on picking out who's going to be the least likely to help harbor and do some of the towards the defense because their background so the first person they looked at was this catholic nun she was caucasian and she she stated point blank she didn't think she could be fair she would give the defen sympathy because of their background so the government moved to strike her for cause so then we get to juror number twenty eight his answers are not quite so unequivocal but they are along the same lines as the nuns and answers in terms of suggesting that he would be sympathetic towards the defendant in the government's mind and so what happened was the defense wanted to question him  try and rehabilitate him because the defense seemed to want him on the jury so the defense tries to i would say skew him in even more in favor of them in the way they asked the questions when they took him on individual question questioning the defense asked well we understand your feelings on what he the man said i believe i can you know basically discrimination against muslims is ok because i don't like the way they act and in essence that's what he was saying and so the defense said well but these defendants are christian would you be ok with that and he said oh yeah of course and like you know they they came here from iraq for religious reasons obviously in france being they were persecuted by muslims in iraq and that's where they came to the united states over the pillared only flown once in his life you may not have known much about persecuted christians in the middle east that is possible your honor but obviously there's not a lot of time that the government has was making these decisions and as long as it that he was the safest juror for them in terms of his possible ideology and response to the defendant's background and the defendants went into detail about their background starting in opening statement defendant johana not one of the ones who ended up being convicted his attorney was the only person to give an opening at the beginning of trial and he went into detail about all the terrible things that muslim extremists did to his family in iraq that lead for him led to him coming over then two defendants testified in their own defense including m they both testified to all the bad things that happened to them because a muslim extremists in iraq so what the government's fear came to pass and so they made a very reasonable model trying to not base it on rice when they decided to strike number twenty eight and  obviously that couple of the fact that he only flown once before he was a prime juror for them to strike now the only person who the defense has really pointed to where they were to number twenty number thirty three they say are similar but they were not similar in number twenty had for example never said he only found once before but number thirty three even if you think he was similar he was farther back in the on the list he was number thirty three this is number twenty eight if you have no further questions i will we have thank you all right thank you ok mr roy if this were a case that we knew in other words if the government was willing to try this case on the basis of words plus conduct then we should have gotten the supplemental jury instruction number seven which we requested you'll find that on page three seventy of the record that says basically a first amendment instruction this is protected don't convict him on the basis of words alone unless it's a true threat to the government did not support that because there was some disputed testimony about physical conduct the government also had lots of testimony about other kinds of fears in other the first amendment prohibit cross burning carried out with the intent to intimidate so don't you think the judge fits waters charging this is a specific intent crime  took care of it i don't your honor and i disagree and you know i believe the judge fitzwater probably intended to do that but he did refuse all of our requests to sort of eliminate the ambiguity in other words we asked several times in that charge conference would you please say an intent to intimidate they had that purpose the government fought against this now i hear the government admitting that this is a specific intent statute several times below they argue no no no it's a general intent statute that's why they objected to anything it was general intent and if you look at the way the government exploited the ambiguity in its closing argument it argued general intent if the actions were intentional not accidental then you find him guilty in other words that's the government's argument because the government argued this as a general intent cakes if we had gotten that jury instruction in lost then i agree we would be out of luck our system commits those choices to a fairly select improperly instructed jury history was not fairly selected and it was not properly instructed we requested that instruction and the district court denied it in other words i'm misremembering but if even if a court errors and a jury instruction can't it can't be or if it's harmless and harmless if the pardon me parties had no problem arguing their views of the law your honor we were not we were not able to argue no intent to intimidate in other words because this was presented as a general intentionally intimidate a flight crew member but he refused to give the clarifying instruction what that means is you have to have an intent to intimidate the difference being this classic thing you learn about and first your law school right is this general intent you intentionally acted and it had the effect of making them afraid and if you look there's a lot of testimony about that right based on my training i learned that people create a distraction so that someone else could storm the cockpit in other words the even the pilot is saying all the that the other the soccer players they can't get back on the plane either because i'm afraid not that it was something that our client threatened to do or suggested he was going to do but he was doing something that seemed a little out of the ordinary and so they're frightened someone else is going to do it so in other words that's the real difference here between the virginia versus black definition and the definition addition sorry but i mean that's the second and third sentence of justice o'connor's opinion says  i'm sorry says that if they with intent to intimidate now you know they were trying to get their alcoholic beverages weren't that you are if you are disputing what was going on they said they were just joking about it but they felt like because of the language they were speaking that this is why they acted this way and that made them unhappy he says we concluded it was stay that the state may ban cross burning carried out with the intent to intimidate and that instruction we weren't given we asked for it and we were denied it and that and that's what we're here complaining about on the mental state also on the definition of what intimidation is itself an expression of an intent to commit a violence in other words to the  very well can might have convicted these defendants on the basis of they did something that made the flight attendants afraid but was not a threat or an implied threat or a suggestion that they were going to do the thing they were afraid it in other words the difference being defendant does one thing and define it in a field afraid first the defendant is doing something that communicates i'm going to do this thing in other words if i did it it's never testified mr petras threatened or acted like he was going to storm the cockpit they said he acted in this weird way we were afraid it was a diversion or a distraction ok the record very close thank you miss your court appointed and we thank you for your service to the