IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-6272

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

 

JIMMY HICKS, JERRY CANTY, 

 and LATONYA MOORE,

 

 Defendants-Appellants 

 

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

( December 23, 1992)

Before KING, JOHNSON and DUHé, Circuit Judges.

KING, Circuit Judge:

 Appellants, passengers aboard a commercial airline flight

from Jamaica to Houston, were convicted of "intimidating" members

of the flight crew "so as to interfere with" the performance of

their duties, in violation of 49 U.S.C. § 1472(j). Appellants

raise a number of claims on appeal, most notably a first

amendment challenge to § 1472(j). After carefully considering

all their claims, we affirm. 
2

 I.

 Appellants Jimmy Hicks and Latonya Moore, who were traveling

companions, boarded Continental Airlines Flight 1919 in Montego

Bay, Jamaica on July 23, 1991. The flight, carrying

approximately 145 passengers, was bound for Houston. Hicks

carried on board a "boombox," a portable stereo system consisting

of an AM-FM radio, a tape player, and speakers. Immediately

after boarding and taking a seat, Hicks discovered that his seat

was malfunctioning, which prevented him from sitting next to

Moore. Hicks subsequently requested that Melissa Bott, the

aircraft's flight service manager, find alternative seating for

them. Bott responded that she could do so only after everyone

with pre-assigned seating had claimed their seats. Hicks

expressed his displeasure with Bott's response by using the

expletive "shit." Rather than following Bott's instructions,

Hicks immediately proceeded to procure alternative seating by

offering another passenger free drinks in exchange for his seat.

Also, during this time, Bott observed Hicks remove a newspaper

from another passenger's lap. The passenger -- a total stranger

to Hicks -- protested that he had not yet finished reading the

paper. Hicks angrily threw the paper back at the other

passenger. Bott said that she was "alarm[ed]" by Hicks' extreme

arrogance. 

 Shortly thereafter, still prior to take-off, Moore turned on

the radio component of the boombox. Bott testified that the

radio was playing "loud[ly]." Bott immediately approached Moore
 

1 Sibok Kim, his wife, and his two children were seated two

rows immediately behind Hicks. Kim testified that neither Hicks

nor Moore ever asked the Kim family whether they wished to hear

the music.

3

and informed her that Federal Aviation Administration (FAA)

regulations prohibited the playing of radios on board aircraft

because radio-playing interferes with the proper functioning of a

plane's navigational equipment. Moore agreed to turn the radio

off -- but only for the time being, as later events would prove. 

 Following take-off, one of the flight attendants, Eileen

DuBois, heard loud music playing on the aircraft; she noticed

that Hicks and Moore once again were playing their boombox. 

After DuBois approached Hicks, he claimed that he was playing an

audio tape rather than the radio. DuBois informed him that

Continental policy required that passengers may only listen to

tape players through headphones. Hicks angrily refused to turn

off the machine, claiming that all of the passengers seated

within listening range desired to hear his tape. Hicks' claim

was in fact somewhat unfounded.1 Rather than confronting Hicks

any further, DuBois believed that the wisest course was to inform

her superior, Melissa Bott, of Hicks' refusal to use headphones. 

Bott subsequently entered the cockpit to apprise the captain of

the situation. 

 The captain instructed Bott to order Hicks and Moore to

discontinue use of the boombox. The captain stated that he

believed that the playing of the radio was the cause of the

malfunctioning of aircraft's navigational equipment during the
4

plane's ascension to cruising altitude. Prior to Bott's entry

into the cockpit, the captain and his first and second officers

had attempted in vain to determine why the navigational equipment

had failed, including running internal tests on the equipment,

contacting a nearby American Airlines aircraft to inquire if it

was experiencing similar difficulties, and contacting the airport

in Jamaica to see if the malfunctioning was the result of a

problem in the air traffic control tower. By the time Bott

informed him of appellants' radio-playing, the captain had

already concluded that the source of the problem was within the

aircraft, although not equipment-related. Bott's report about

the boombox strongly suggested that Hicks and Moore had continued

to play the radio after being instructed not to do so. 

 Before Bott returned to the portion of the aircraft occupied

by Hicks and Moore, another flight attendant, Carol McWilliams,

approached them after other passengers complained about the

boombox. McWilliams informed Hicks that he must not play the

radio -- as it would interfere with the plane's navigational

equipment -- and that if he played a tape he must use headphones. 

Hicks responded that McWilliams was "the third bitch" who had

complained about the boombox. He also angrily ordered her to

serve him a drink. At that point, Moore interjected that all of

the passengers around them wished to hear the boombox. Like

DuBois before her, McWilliams realized that Hicks and Moore were

too obstinate to reason with; the flight attendant thus went to

the front of the aircraft to inform Bott. As McWilliams walked
5

up the aisle, she met Bott, who was coming from the cockpit. 

McWilliams informed Bott of Hicks and Moore's continued noncompliance.

 Bott again approached Hicks and Moore. She requested that

they should turn the boombox over to her for the remainder of the

flight. Hicks responded that the "f---ing radio was going to

stay on" and that he would not relinquish it to anyone. In a

confrontational manner, he then passed it to Moore and stated "if

you want the radio, you need to get it from her." Moore also

refused to give up the boombox and cursed at Bott. Moore firmly

stated that "the radio is going to stay on," and ordered Ms. Bott

to get her "ass[] back there and do [her] job to get them

something to eat and drink." She also ordered the flight

attendants to "quit bothering" them. At this point, Appellant

Canty, who was seated nearby but who was not a traveling

companion of Hicks and Moore, intervened and began to curse at

Bott and McWilliams. No member of the flight crew had heretofore

directed any comment to Canty. Bott stated that she asked

appellants not to use profanity, as young children were seated

nearby. Bott also stated that she began to feel "frightened" by

appellants' increasingly angry obstinacy, although all the while

she maintained her composure.

 Bott returned to the cockpit to inform the captain of the

latest developments in the escalating disturbance. At that

point, the captain instructed his second officer to attempt to

retrieve the boombox. In the meantime, McWilliams had another
6

encounter with Hicks and Moore, although this time Canty again

vocalized his own angry sentiments to the flight attendant. 

McWilliams directed appellants' attention to a Continental

Airlines flight magazine wherein the proscription on radio

playing and the requirement that a tape player could be played

only with headphones were clearly set forth. Canty angrily

responded that McWilliams should "get out of [his] face." 

 Shortly thereafter, the second officer, Jim McKelvain,

arrived and informed Hicks and Moore that their radio had

interfered with the aircraft's navigational equipment. He asked

them to relinquish the boombox. Hicks told the second officer

"to get f---ed" and that Hicks would rather pay a fine than

cooperate. The second officer described Hicks as totally

"uncooperative," even after being told that he was violating

federal law. As he had done when confronted with Bott's demand

to turn over the boombox, Hicks proceeded to pass it to Moore. 

Moore refused to hand it over to the second officer, even after

the officer stated that rather than confiscating it, he would

merely place it in the overhead compartment located above Hicks

and Moore. 

 Hicks then instructed the second officer to get his "motherf---ing ass to the cockpit" and fly the plane. The second

officer returned to the cockpit and informed the captain of his

belief that physical force would be required to retrieve the

boombox. Meanwhile, Bott was making a last ditch effort to

explain to Hicks and Moore that they were violating federal law. 
7

Moore stated that she did not care and that she was going to keep

the boombox in her possession. Hicks stated that all of the

passengers around him wished to hear the radio and that he did

not care about a "f---ing" fine; in fact, he claimed, he would

"buy the f---ing airplane." According to Bott, Hicks'

countenance was extremely menacing. Furthermore, Canty "kept

turning around and saying things the whole time I kept trying to

talk to Miss Moore or Mr. Hicks." Among other things, Canty

angrily stated "f--- you bitch" to Bott and told her to leave

Hicks, Moore, and Canty alone. Bott also stated that the volume

of the boombox was intentionally increased. Without identifying

particular passengers, Bott also stated that "[a]t that point

everyone around them . . . were laughing" and that someone began

to videotape Bott with a portable camera. 

 Bott and McWilliams testified that, because of the

disturbance, for a significant amount of time numerous members of

the flight crew were unable to perform their regular duties

aboard the aircraft. Bott, McWilliams, and Dubois also stated

that they were very much intimidated by Hicks, Moore, and Canty. 

At one point during her efforts to retrieve the boombox, Bott

testified, she felt the need visually to locate fire

extinguishers to use in her defense in the event that she was

physically assaulted by any or all of the three passengers. Bott

also stated that numerous passengers seated around the

disturbance had expressed their fear "that a riot . . . might

break out."
8

 Realizing that further efforts to retrieve the boombox

would be futile -- short of physical force -- the captain

diverted the aircraft's course to Cancun, Mexico, where an

unscheduled landing occurred. The captain stated that he was

unwilling to order the crew members to attempt to retrieve the

boombox by physical force. He was also unwilling to risk the

possibility that further radio playing would again interfere with

the aircraft's navigational equipment. Upon landing, Mexican

authorities removed several passengers from the plane, including

Hicks, Moore, and Canty. Canty initially refused to deplane. 

 It is undisputed that, throughout the flight, none of the

appellants committed assault or battery or verbally threatened

any Continental flight crew member with physical harm. Rather,

according to the testimony of the various members of the

Continental flight crew, intimidation resulted solely from

appellants' verbal and non-verbal expressive activity --

consisting primarily of appellants' repeated angry and profane

remarks, although also including menacing stares, the refusal by

Hicks and Moore to relinquish the boombox, and the intentional

increase in the boombox's volume by Hicks and Moore. Bott also

cited Hicks and Moore's repeated passing of the boombox between

themselves after being asked to relinquish it. The Government

argues that such intimidating expression, which occupied the

attention of numerous members of the flight crew for a

significant amount of time and ultimately caused the plane to be
 

2 That provision reads, in pertinent part, as follows:

(j) Whoever, while aboard an aircraft within the

special aircraft jurisdiction of the United States,

assaults, intimidates, or threatens any flight crew

member or flight attendant (including any steward or

stewardess of such aircraft), so as to interfere with

the performance by such member of his duties, shall be

fined not more than $10,000 or imprisoned not more than

twenty years, or both. * * * 

For convenience's sake, we shall refer to cockpit crew members,

the flight service manager, and all flight attendants as "flight

crew members."

 

3 Appellant Canty raised one issue on appeal: whether the

district court erred by failing to instruct the jury that a

violation of § 1472(j) was a specific intent crime. See infra

Part II.D.

9

diverted to Cancun, is the gravamen of appellants' § 1472(j)

violation. 

 On September 4, 1991, a jury found Hicks, Moore, and Canty

guilty of violating 49 U.S.C. § 1472(j).2 Sentencing occurred in

the following November. Hicks was sentenced to fourteen months

imprisonment to be followed by three years of supervised release. 

Moore was sentenced to eight months imprisonment to be followed

by three years of supervised release. Canty was sentenced to

four months imprisonment to be followed by three years of

supervised release. All three appellants were also each ordered

to pay restitution in the amount of $1,871.35 to Continental

Airlines, as well as a special assessment of $50.00.

 II.

A. The first amendment challenge

 Appellants Hicks and Moore3 claim that their convictions

under 49 U.S.C. § 1472(j) are in violation of the free speech
10

clause of the first amendment to the United States Constitution. 

Appellants specifically claim that the statute's operative term

"intimidate" is overbroad 

because a person using profanity, which is not

specifically [proscribed by] the statute, [but] which

is constitutionally protected, could be accused of

violating the statute. . . . That is, the [statutes's

use of the] word "intimidate" cannot be limited to core

criminal conduct but becomes an enforceable ordinance

generally prohibiting [profane] speech, which is

constitutionally protected. . . . By including . . . 

the term "intimidate" the statute fails to properly

exclude [profane] speech which [is] protected by the

First Amendment but which may also cause intimidation.

Although this passage from Hicks and Moore's briefs appears to be

challenging the statute solely on overbreadth grounds, in reply

briefs appellants respond that their "overbreadth challenge is

both to the face of the statute, and as applied to the facts in

this case" (emphasis added).

 The Government argues that not only is § 1472(j) not

overbroad, but also that "profanity [such as that spoken by

appellants] used . . . to intimidate is proscribable speech. . .

. It is similar to fighting words and obscenity." The

Government proceeds to note, though, that § 1472(j) "proscribes

intimidation of crew members that interferes with their duties,

not profanity. It is not a content regulation of speech. . .

[T]o the extent that it proscribes profanity used to intimidate

crew members aboard an aircraft in flight, that proscription is

permissible," as merely an "incidental" restriction on speech. 

At oral argument, however, the Government repeated its argument

that profanity in general is not protected speech and, for that
 

4 We agree with appellants that the profanity generally is

protected by the first amendment. However, the statute that

appellants are challenging does not criminalize profanity per se,

but instead criminalizes any speech or conduct, which may

incidentally include profanity, that intimidates an airline's

flight crew so as to interfere with the performance of their

duties. See infra Part II.A.ii. 

11

reason, appellants have no basis for challenging the statute on

first amendment grounds.

 We agree with the Government that § 1472(j) does not violate

the first amendment, although we do not rely on the totality of

the Government's reasoning to reach this result. In addressing

this claim, we are required to address both parts of appellants'

two-pronged challenge -- that the statute is both overbroad and

in violation of the first amendment as applied to the facts of

the instant case. 

i) The overbreadth challenge

 Appellants have made a spirited attempt to invalidate §

1472(j) on overbreadth grounds; however, as is evident from the

above-quoted passage from their briefs, they have misconceived

the overbreadth doctrine, at least as it applies to the instant

case. Appellants argue that the term "intimidate" is overbroad

in that it effectively criminalizes a form of speech -- simple

profanity or vulgarity -- that may well intimidate, but should

nevertheless be afforded protection under the first amendment.4

While such an argument at first blush appears to be an

overbreadth challenge, appellants are in fact only making a

substantive challenge to § 1472(j) as it applies to intimidating
12

profanity or vulgarity such as that used by appellants. 

Appellants have not argued that "intimidate" is overbroad in that

it may also chill other types of protected expression besides

profanity.

 Appellants fail to realize that the rationale of the

overbreadth doctrine is to protect the expressive rights of third

parties who are not before the court. An overbreadth challenge

is not appropriate if the first amendment rights asserted by a

party attacking a statute are essentially coterminous with the

expressive rights of third parties. See Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 504 (1985) (Courts need not

entertain an overbreadth challenge "where the parties challenging

the statute are those who desire to engage in protected speech

that the overbroad statute purports to punish . . . . There is

then no want of a proper party to challenge the statute, no

concern that the attack on the statute will be unduly delayed or

protected speech discouraged."); Members of the City Council of

the City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789,

801-02 (1984) ("[Appellees] have . . . failed to identify any

significant difference between their claim that the ordinance is

invalid on overbreadth grounds and their claim that it is

unconstitutional when applied to their political signs.");

International Society for Krishna Consciousness of New Orleans,

Inc. v. City of Baton Rouge, 876 F.2d 494, 499-500 (5th Cir.

1989) (citing Vincent); L. Tribe, Constitutional Law, § 12-27, at

1022-24 & n.7. 
 

5 According to the Supreme Court in Vincent, a party

challenging a statute as overbroad has the burden "to demonstrate

a realistic danger that the ordinance will significantly

compromise First Amendment protections of individuals not before

the Court." 466 U.S. at 802; see also International Society for

Krishna Consciousness, 876 F.2d at 500. 

 

6 We note that profanity should be distinguished from two

somewhat related, but distinguishable, species of non-protected

speech -- "fighting words" and obscenity. See Chaplinsky v. New

Hampshire, 315 U.S. 568 (1942) (fighting words not protected);

Miller v. California, 413 U.S. 15 (1973) (obscenity not

protected). With reference to remarks made in the instant case,

we believe that none rose to the level of "fighting words" or

obscenity. 

 

7 For instance, we can hypothesize a scenario in which an

intoxicated airline passenger becomes angry at a member of the

flight crew because of the crew member's refusal to serve alcohol

to the passenger. The passenger could hurl non-profane invective

at the crew member, which -- depending on the tenor of the

invective -- could intimidate the crew member so as to interfere

with the performance of his duties. A similar hypothetical was

actually mentioned by the sponsor of 49 U.S.C. § 1472(j) in the

United States Senate. See remarks of Senator Engle, 107 Cong.

Rec. 17170 (August 28, 1961) (hypothesizing scenario of "a drunk

quarrelling with a stewardess over whether or not he could keep

his bottle").

13

 Even if appellants had argued that § 1472(j) is overbroad

because it chills expression other than profanity or vulgarity,5

we do not believe that such an overbreadth challenge would be

viable. The only type of protected speech6 besides profanity

that would have the potential to intimidate a reasonable person

would be non-profane invective.7 Even assuming, without

deciding, that § 1472(j) could not constitutionally criminalize

such angry non-profane invective, we observe that the statute's

potential to criminalize such speech is too insubstantial to

permit an overbreadth challenge. "It is clear . . . that the

mere fact that one can conceive of some impermissible
 

8 Unlike the party who successfully challenged a somewhat

similar statute invalidated on overbreadth grounds by this court

and later by the Supreme Court in City of Houston v. Hill, 482

U.S. 451 (1987), aff'g, 789 F.2d 1103 (5th Cir. 1986) (en banc),

appellants have not offered any proof that there is a realistic

and substantial danger that § 1472(j) will be used to chill

constitutionally protected speech. In Hill, the plaintiff

actually documented numerous prior instances where the challenged

statute had been used to chill constitutionally protected speech. 

See 789 F.2d at 1113-14 (Appendix to majority opinion.) 

Appellants have offered no such data.

 Our own research of reported cases has revealed that

§ 1472(j) has resulted in relatively few convictions. Of those

convictions discussed in reported decisions, the type of activity

prosecuted invariably has not been protected by the first

amendment. See Annotation, Construction and Application of §

902(i-l) of Federal Aviation Act of 1958, as Amended (49 U.S.C. §

1472(i-l), Punishing Aircraft Piracy, Interference with Flight

Crew Members, and Other Crimes Abroad Aircraft in Flight, 10

A.L.R. Fed. 844 (& Supp.) (discussing cases); Annotation,

Validity, Construction, and Application of Provisions of Federal

Aviation Act Punishing Air Piracy and Certain Acts Aboard

Aircraft in Flight, or Boarding Aircraft, 109 A.L.R. Fed. 488, §

17B (discussing cases). In every reported case in which a §

1472(j) conviction has occurred, the defendant has not simply

engaged in "pure speech," whether profane language or non-profane

invective, but has also directly threatened, assaulted, or

battered a member of the flight crew. See, e.g., United States

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

691 F.2d 48 (1st Cir. 1982); United States v. Meeker, 527 F.2d 12

(9th Cir. 1975); Mims v. United States, 332 F.2d 944 (10th Cir.

1964).

14

applications of a statute is not sufficient to render it

susceptible to an overbreadth challenge." Vincent, 466 U.S. at

800. Rather, a party challenging a statute on overbreadth

grounds must demonstrate that there is a "substantial" potential

that the overbroad statute will chill third parties' speech. See

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).8 We believe

that § 1472(j) does not pose a "substantial" threat of

overbreadth. 
 

9 By "profanity" or "vulgarity," we refer to words that,

while not obscene, nevertheless are considered generally

offensive by contemporary community standards. Cf. FCC v.

Pacifica Foundation, 438 U.S. at 741 (discussing humorist George

Carlin's "Filthy Words" monologue as qualifying as "indecent" or

"profane" language). We note that such words usually refer to

"offensive sexual or excretory speech." Id. at 743. We also

believe that certain other language, at least when used in

certain contexts, qualifies as profanity. For instance, with

reference to the instant case, we believe that Appellant Canty's

angry reference to Ms. Bott as a "bitch" and Appellant Moore's

angry admonition that Ms. Bott should get her "ass" to the

plane's kitchen qualified as profane.

15

ii) The as-applied challenge

 There is still a need to review appellants' first amendment

challenge to § 1472(j) as applied to the facts of the instant

case. As an initial matter, we must address the Government's

threshold contention that profanity is not constitutionally

protected speech. This argument is meritless. The Supreme Court

has long held that, as a general rule, simple profanity or

vulgarity -- not rising to the level of "fighting words" or

obscenity -- is constitutionally protected speech.9 See, e.g.,

Lewis v. City of New Orleans, 415 U.S. 130 (1972); Gooding v.

Wilson, 405 U.S. 518 (1972); Cohen v. California, 403 U.S. 15

(1971); see generally Tribe, supra, § 12-10, at 849-56. 

 Although we disagree with the Government's broad contention

about the constitutional status of profanity, we do recognize

that general rules do have their exceptions. As the Supreme

Court has repeatedly held, first amendment protections are not

absolute, even in cases involving "pure speech." See, e.g.,

Elrod v. Burns, 427 U.S. 347, 360 (1976) ("the proscription on

encroachment of First Amendment protections is not an absolute"). 
16

In the instant case, we believe appellants' use of angry

profanity and vulgarities may be constitutionally criminalized. 

 We note at the outset of our first amendment analysis that

the Supreme Court has traditionally bifurcated its review of

statutes challenged on first amendment grounds between cases

involving a content-based regulation of speech and cases

involving a content-neutral "time, place, or manner" restriction.

See generally Tribe, supra, § 12-2, at 789-794. The Court has

applied significantly greater scrutiny to content-based

regulation, requiring a "compelling" governmental interest to

justify the curtailment of speech based on its content and also

requiring that the statute be "`narrowly drawn to achieve that

end.'" Simon & Schuster, Inc. v. Members of New York Crime

Victims Bd., 112 S. Ct. 501, 509 (1992). Conversely, the Supreme

Court has been somewhat more deferential to legislative efforts

to regulate time, place, and manner of expression -- requiring

only a "substantial" governmental interest and "narrow

tailoring," so long as such regulations are content-neutral. See

Ward v. Rock Against Racism, 491 U.S. 781, 791-92, 796 (1989)

("reasonable" regulations on time, place, or manner "only if they

are 'justified without reference to the content of the speech'"

and if they are "`narrowly tailored to serve a substantial

governmental interest'") (citations omitted). 

 Rather than discriminating against protected profanity or

vulgarity, the statute reasonably regulates the time, place, and

manner of speech, irrespective of its particular content. The
 

10 In CISPES, this court was faced with a first amendment

challenge to a federal statute that criminalized, inter alia, the

act of "willfully . . . intimidat[ing] . . . a foreign official

in the performance of his duties." Id. at 471 n.2. We held that

the statute was not content-based:

[T]he statute here does not permit the government to

discriminate on the basis of the content of expression. 

To the extent that it applies at all to protected

conduct, it is not a restriction on any particular

message. It merely proscribes actions of a threatening

or intimidating nature directed at any protected

official, and First Amendment rights are affected only

to the extent that their exercise might serve to create

such intimidation . . . ."

Id. at 474.

17

content of passengers' speech is thus regulated only in an

incidental fashion. Only intimidating speech in a quite limited

context is proscribed. See CISPES v. Federal Bureau of

Investigation, 770 F.2d 468 (5th Cir. 1985).10 In other

contexts, profanity -- even if intimidating -- would not go

unprotected. See, e.g., Nash v. State of Texas, 632 F. Supp.

951, 972-76 (E.D. Tex. 1986) (intimidating language in context of

labor strikes is protected by first amendment). 

 Nevertheless, even if we were to accept appellants'

argument that § 1472(j) does discriminate against profane or

vulgar language, and thus apply the more stringent analysis

required in cases involving a content-based regulation, we would

still hold that the statute is constitutional. Assuring the

utmost in airline safety is the clear purpose behind § 1472(j). 

See United States v. Meeker, 527 F.2d 12, 14 (9th cir. 1975)

("[T]he goal which Congress sought in this provision . . . was to

deter [acts] which, if committed on the terrain below, might be
 

11 We note that at least Appellants Hicks and Moore engaged

not merely in intimidating speech, but also intimidating conduct. 

The parties, however, had limited their arguments to the speech

elements of appellants' intimidation. 

18

considered relatively minor, but when perpetrated on an aircraft

in flight would endanger the lives of many.") In view of the

special context of air travel -- pressurized vessels routinely

carrying hundreds of passengers and traveling at speeds of up to

600 miles per hour and 40,000 feet above the ground -- we cannot

gainsay that there is a compelling governmental interest for §

1472(j). Congress did not unnecessarily infringe passenger's

first amendment liberties to use intimidating profanity. The

potential for disaster being so great, even the more mundane

duties of flight attendants which implicate safety cannot be

taken for granted. Moreover, we note that in the instant case,

it was not only flight attendants, but also a member of the

cockpit crew whose duties were interfered with by appellants.

 We also believe that the statute is narrowly tailored. It

does not cast a sweeping net at amorphous categories of speech. 

See, e.g., Gooding v. Wilson, 405 U.S. 518, 523 (1972)

(invalidating statute that proscribed "opprobrious" or "abusive"

language). Rather, the statute requires a passenger to

"assault[], intimate[], or threaten[] . . . so as to interfere"

with a crew member's duties. 49 U.S.C. § 1472(j). "Intimidate,"

the operative term in the instant case, is a word that is not

simply associated with a type of speech, but includes conduct as

well.11 In fact, it encompasses only a relatively narrow range
19

of speech, which frequently will be a concomitant of intimidating

conduct, as in the instant case. Moreover, only intimidating

acts or words that actually interfere with a crew member's duties

are penalized. Usually only extreme or repeated intimidation --

such as that in the instant case -- will actually have the effect

of interfering with a crew member's duties. 

 We hold that § 1472(j) is constitutional as applied to

appellants in the instant case.

B. Vagueness

 Appellants have raised a related challenge to the statute as

being unconstitutionally vague. This argument is also without

merit. We observe that the instant case is not an appropriate

one in which to raise a void-for-vagueness challenge. "In a

facial challenge to the . . . vagueness of a law[], a court's

first task is to determine whether the enactment reaches a

substantial amount of constitutionally protected conduct." 

Village of Hoffman Estates v. Flipside, 455 U.S. 489, 494-95

(1982). If the statute does not proscribe a "substantial" amount

of constitutionally protected conduct, a party may raise a voidfor-vagueness challenge only if "the enactment is impermissibly

vague in all of its applications." Id. at 495 (emphasis added). 

As we discussed in connection with appellants' overbreadth

challenge, the statute does not reach a "substantial" amount of

constitutionally protected conduct. Thus, because § 1472(j)

obviously is not impermissibly vague in all its applications,
 

12 This definition is listed in Websters New Collegiate

Dictionary (1979), at p. 600, as a part of a larger definition:

"[T]o make timid or fearful: Frightful; esp: to compel or deter

by or as if by threats."

20

appellants' void-for-vagueness challenge must fail. Furthermore,

we note that "[o]ne to whose conduct a statute clearly applies

may not successfully challenge it for vagueness." Id. at 495

n.7. There is no question that appellants' conduct violated §

1472(j). Nevertheless, we note that the Ninth Circuit, in a

void-for-vagueness challenge in which the court actually reached

the merits, has upheld § 1472(j). See United States v. Tabacca,

924 F.2d 906, 913 (9th Cir. 1991). 

 

C. The definition of "intimidation" in the jury charge

 The district court's jury instruction with regard to the

term "intimidate," as used in § 1472(j), was as follows:

In considering whether the actions of the Defendant(s)

amounted to intimidation, you are instructed that it is

sufficient if the words and conduct of the Defendant(s)

would place an ordinary, reasonable person in fear.

Appellants objected to this charge and requested what they

claimed was a more appropriate "dictionary" definition of

"intimidate" -- "to compel or deter by or as if by threats" --

which the district court denied.12 

 Rejection of appellants' argument here requires little

discussion. "In reviewing a challenge to a jury charge, we must

determine whether a court's charge, as a whole, was a correct

statement of the law. When the complaint is that the trial court
21

refused to give a requested instruction, this court must

determine whether this refusal was an abuse of discretion." 

United States v. Sellers, 926 F.2d 410, 414 (5th Cir. 1991). Our

research indicates that the most commonly understood "dictionary"

definition of "intimidate" is in fact the one given by the court

-- namely, to place a person in fear. Interestingly, this was

the primary definition listed in Webster's New Collegiate

Dictionary, the dictionary cited by appellants at trial;

appellants requested a more specific, secondary definition. 

While intimidation may result from words or conduct that may

directly threaten, it is commonly understood that a person may

intimidate another without actually making a direct or even

veiled threat. Indeed, § 1472(j) uses the terms "threaten" and

"intimidate" in the disjunctive. 

 We also observe that the district court not only instructed

the jury correctly on the definition of "intimidate," but

actually charged the jury in a way that was considerably more

favorable to appellants than the instruction requested by

appellants. Appellants' proposed instruction encompassed

subjective intimidation -- i.e., intimidation that results from

another's words or acts, whether or not the intimidated party's

perception is reasonable. Conversely, the district court

instructed jurors that they could find that intimidation occurred

only if a reasonable person would have been intimidated by
 

13 The district court apparently adopted the objective

definition of "intimidate" from that given by the district court

in United States v. Meeker, 527 F.2d 12, 15 (9th Cir. 1975), a

case involving a § 1472(j) violation. 

 

14 This was the only claim raised by Appellant Canty on

appeal.

 

15 The district court's charge regarding the mens rea

necessary for a conviction read as follows:

For you to find the defendant[s] guilty of this crime,

you should be convinced that the United States has

proved each of the following beyond a reasonable doubt: 

 * * *

 (2) the defendant(s) knowingly and unlawfully intimidated 

any flight crew member of flight attendant (including

any steward or stewardess),

 

 (3) So as to interfere with the crew member(s) or flight 

attendant(s) performance of their duties, or to lessen the

ability of the crew member(s) or flight attendant(s) to

perform their duties . . . .

22

appellants' words and conduct.13 The district court did not

abuse its discretion. 

D. General or specific intent?

 Appellants14 contend that a violation of § 1472(j) requires

a specific, as opposed to general, intent. Appellants argue that

the district court erred by giving only a partial specific intent

instruction.15 We observe that the court's charge essentially

tracked the language of the statute, with the exception of

requiring that the jurors find that appellants "knowingly"

intimidated the crew members. The appellants argue that the

district court nevertheless should have gone further and charged

the jury that it could convict only if it also found that
23

appellants knowingly intimidated with the specific intent to

interfere with a crew member's duties. As the charge read, it

only required a specific intent to intimidate, not a specific

intent to interfere. 

 The only other court to directly address this issue is the

Ninth Circuit. In United States v. Meeker, 527 F.2d 12, 14 (9th

Cir. 1975), the court held that § 1472(j) is a general intent

crime. See also United States v. Brice, 926 F.2d 925, 929 (9th

Cir. 1991); cf. United States v. Busic, 592 F.2d 13, 21 (2d Cir.

1978) (49 U.S.C. § 1472(i), a related statutory provision

criminalizing air piracy, held to be general intent crime). We

agree that § 1472(j) is a general intent crime. The paramount

purpose of the statute, as we discussed supra, is to ensure that

passengers do not impede airline crew members' duties, many of

which are critical to the safe operation of the aircraft. As the

Meeker court explained, "we . . . construe § 1472(j) as a general

intent crime, in harmony with the [compelling] statutory purpose

of safeguarding flight personnel from any statutorily described

acts which would interfere" with their duties. 527 F.2d at 14. 

 Whether a passenger specifically intends to interfere with

those duties is irrelevant. General intent is all that Congress

required, as is evident from the plain language of the statute --

in particular, Congress' failure to use a term such as

"willfully," "intentionally," or "knowingly," and Congress'

selection of the phrase "so as to interfere." See United States

v. Lewis, 780 F.2d 1140, 1143 (4th Cir. 1986) (courts should
 

16 Appellant Canty at one point in his brief argues that §

1472 is a strict liability crime, which is disfavored in our law

except for minor offenses. See Morissette v. United States, 342

U.S. 246 (1952). We disagree that § 1472(j) imposes strict

liability. The statute requires intent for the intimidation

element of the statute; the statute merely requires no mens rea

for the result of the intimidation, i.e., causing interference

with crew members' duties. The gravamen of the offense -- for

which intent is required -- is intimidation, not interference. 

Interference with the flight crew is merely an attendant

circumstance.

24

presume statutes require only general intent "[i]n the absence of

an explicit statement that a crime requires specific intent").16 

 Appellant Canty additionally argues that the court erred in

giving the jury an aiding-and-abetting instruction that required

specific intent, if the statute itself only requires general

intent. This created an impermissible anomaly, Canty argues. We

observe that Canty did not object to this aspect of the jury

charge. Thus, we can only review this claim for plain error. 

Fed. R. Crim. P. 52(b). We find no such error. Indeed, if

anything, such an instruction was salutary error, which likely

benefitted Canty, as it may have led jurors to believe that they

could convict Canty only if they found that he possessed a

specific intent to violate § 1472(j). 

 

E. Sufficiency of the evidence

 Appellants challenge the sufficiency of the evidence

supporting their convictions. We begin by noting the familiar

standard of review of sufficiency claims, which was articulated

by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 319

(1979) -- whether, based on the totality of evidence at trial,
 

17 As we set forth in the statement of the facts in supra

Part I, Appellants Hicks and Moore each engaged in extreme and

repeated angry profanity and vulgarity. Appellant Canty has not

challenged the sufficiency of the evidence supporting his

conviction.

25

and all reasonable inferences therefrom, and in a light most

favorable to the Government, a rational juror could find all

elements of an offense beyond a reasonable doubt. 

i) Whether there was sufficient evidence of "intimidation"?

 Appellants Hicks and Moore argue that mere words -- at least

words that do not constitute a direct threat -- cannot constitute

intimidation. We disagree. As we noted in our discussion of the

district court's definition of "intimidate," that term is not

synonymous with "threaten." With respect to the evidence

presented by the Government at trial, we observe that numerous

members of the Continental flight crew testified that appellants

intimidated them. In the environment in which appellants'

statements17 were made -- the closed quarters of an airplane --

the extreme and repeated profanity which they used, when combined

with the angry tenor of their words, certainly would intimidate a

reasonable person. Appellants' words were not merely indicative

of aimless frustration; rather, they evinced extreme anger vis-avis particular persons, namely Continental flight crew members. 

The intimidation was thus likely even greater in Hicks' case. 

 Finally, we observe that it was not merely words, but also

appellants' conduct, that intimidated the flight crew members. 

We note that Hicks and Moore's repeated refusals to relinquish
26

the boombox after being requested to do so, in combination with

their angry declarations that the "f---ing radio [is] going to

stay on," certainly would have intimidated a reasonable person. 

We also observe that the very real threat that appellants would

play the radio component of the boombox, which could have caused

critical navigational equipment to malfunction, no doubt was

intimidating.

 

ii) Whether there was sufficient evidence of "interference"?

 There is ample evidence in the record to support a rational

fact-finder's conclusion that appellants interfered with numerous

Continental flight crew members' duties. There was specific

testimony to this extent from Melissa Bott and Carol McWilliams. 

There was also other evidence indicating that flight crew

members, including a member of the cockpit crew, were forced to

ignore their duties as a result of the appellants' intimidating

words and conduct. 

 We conclude that there was sufficient evidence to support

appellants' convictions under § 1472(j).

 III. 

 For the foregoing reasons, we AFFIRM all three appellants'

convictions under 49 U.S.C. § 1472(j).