The panel unanimously concludes that this case is suitable for decision *

without oral argument. Fed. R. App. P. 34(a)(2).

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BENJAMIN HARRIS,

Defendant-Appellant.

No. 11-50503

D.C. No.

2:11-cr-00414-

SJO-1

ORDER AND

AMENDED OPINION

Appeal from the United States District Court

for the Central District of California

S. James Otero, District Judge, Presiding

Submitted November 6, 2012*

Pasadena, California

Filed December 5, 2012

Amended January 14, 2013

Before: Susan P. Graber, Sandra S. Ikuta,

and Andrew D. Hurwitz, Circuit Judges.

Order;

Opinion by Judge Graber
2 UNITED STATES V. HARRIS

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

SUMMARY

**

Criminal Law

Affirming a conviction, the panel held that 49 U.S.C.

§ 46505, which prohibits carrying a “concealed dangerous

weapon” on aircraft, is not unconstitutionally vague as

applied to an airport employee who sneaks a pocketknife with

a blade that is almost two-and-a-half inches long past a

security checkpoint and then gives it to a passenger who takes

it aboard an airplane.

COUNSEL

William S. Harris, Law Offices of William S. Harris, South

Pasadena, California, for Defendant-Appellant.

Melissa Mills, Assistant United States Attorney, National

Security Section, Los Angeles, California, for PlaintiffAppellee.

ORDER

The opinion filed on December 5, 2012, and appearing at

2012 WL 6054778, is amended as follows:
UNITED STATES V. HARRIS 3

On slip opinion pages 10–11, in the carryover paragraph,

change “we must read § 46505,” through “By stating” to:

§ 46505—which lacks a similar reference—is

unconstitutionally vague as applied. We 4

disagree. We have already explained why

§ 46505 gave fair notice to this Defendant that

this knife was proscribed. Two other

statutes—enacted at different times to address

different subjects—do not change our

conclusion. If anything, by stating

On slip opinion page 11, change “this interpretation,” to

“that interpretation.” and delete “as that statute merely

confirms that the term ‘dangerous weapon’ includes such a

pocketknife”.

With these amendments, Appellant’s petition for panel

rehearing is DENIED. No further petitions for rehearing or

petitions for rehearing en banc will be entertained.

OPINION

GRABER, Circuit Judge:

The question presented is whether 49 U.S.C. § 46505,

which prohibits carrying a “concealed dangerous weapon” on

aircraft, is unconstitutionally vague as applied to an airport

employee who sneaks a pocketknife with a blade that is

almost two-and-a-half inches long past a security checkpoint

and then gives it to a passenger who takes it aboard an

airplane. Reviewing de novo, United States v. Zhi Yong Guo,
4 UNITED STATES V. HARRIS

634 F.3d 1119, 1121 (9th Cir.), cert. denied, 131 S. Ct. 3041

(2011), we hold that the statute is not unconstitutionally

vague as applied and, therefore, we affirm.

On January 30, 2011, the Transportation Security

Administration (“TSA”) prevented Edward Lee Henderson,

a JetBlue Airways passenger, from passing through a security

checkpoint at the Long Beach, California, airport because he

had a pocketknife in his carry-on bag. The pocketknife had

two blades, the longer of which measured slightly less than

two-and-a-half inches. Here is a photograph of the knife:
UNITED STATES V. HARRIS 5

TSA personnel told Henderson to return to the ticketing

counter so that he could place the knife into one of his

checked bags. Henderson went first to the curbside check-in,

where he had checked his luggage, but was directed to the

JetBlue ticketing counter. Defendant, Benjamin Harris, an

Airport Bags employee with a Security Identification Display

Area badge, accompanied Henderson from the curbside

check-in to the ticketing counter.

At the ticketing counter, Alem Habtay, a JetBlue

employee, told Henderson that it was too close to the flight’s

boarding time to place the pocketknife in his previously

checked luggage but that he could check the knife separately

for $30. Henderson said that he did not have $30. Defendant

then suggested to Henderson that he might be able to assist

him with his problem, and together the two men walked away

from the counter and out of the ticketing area.

Outside the ticketing area, the two men agreed that

Defendant would help Henderson get the pocketknife past the

TSA checkpoint. Henderson gave Defendant the pocketknife

so that Henderson could go through the TSA checkpoint.

Defendant’s security clearance allowed him to use his badge

and PIN number to enter the boarding area, with the knife,

without passing through a TSA checkpoint. The two men

met in a restroom, where Defendant returned the knife.

Several signs in and around the terminal cautioned that

“knives” were prohibited in the secured portion of the airport.

Meanwhile, Habtay suspected that Defendant might try to

use his badge to take the pocketknife past security. She told

a co-worker of her suspicion; the co-worker, in turn, told the

JetBlue Station Manager on duty, Greg Garcia. Habtay then

spoke directly with Garcia, whereupon the two went to the
6 UNITED STATES V. HARRIS

 Title 49 U.S.C. § 46505 states in relevant part: 1

(b) An individual shall be fined under title 18,

imprisoned for not more than 10 years, or both, if the

individual—

(1) when on, or attempting to get on, an aircraft in,

or intended for operation in, air transportation or

intrastate air transportation, has on or about the

individual or the property of the individual a concealed

dangerous weapon that is or would be accessible to the

individual in flight[.]

. . . .

(e) If two or more persons conspire to violate

subsection (b) . . ., and one or more of such persons do

boarding area to locate Henderson. Unable to find him, they

boarded the plane, and Habtay identified Henderson.

Garcia approached Henderson and asked for the knife.

Henderson initially denied having a knife. But, when Garcia

said that he would have Henderson removed from the plane

if necessary, Henderson handed the knife to Garcia.

Henderson remained on the flight.

Garcia notified various security personnel of the incident.

During an interview with a Long Beach police officer,

Defendant admitted his role in the foregoing events.

A grand jury indicted Defendant for conspiracy to carry

a concealed dangerous weapon on an aircraft, a violation of

49 U.S.C. § 46505(e), and for aiding and abetting the carrying

of a concealed dangerous weapon on an aircraft, a violation

of 18 U.S.C. § 2 and 49 U.S.C. § 46505(b)(1). Defendant 1
UNITED STATES V. HARRIS 7

any act to effect the object of the conspiracy, each of

the parties to such conspiracy shall be punished as

provided in such subsection.

moved to dismiss the indictment, arguing that 49 U.S.C.

§ 46505’s prohibition of “dangerous weapon[s]” on aircraft

is unconstitutionally vague as applied. The district court

denied the motion. Defendant entered a conditional guilty

plea, reserving his right to appeal the denial of his motion to

dismiss. He timely appeals.

“A criminal statute is void for vagueness if it is not

sufficiently clear to provide guidance to citizens concerning

how they can avoid violating it and to provide authorities

with principles governing enforcement.” Zhi Yong Guo,

634 F.3d at 1121 (internal quotation marks omitted). In a

facial challenge, a statute is unconstitutionally vague if it

“‘fails to provide a person of ordinary intelligence fair notice

of what is prohibited, or is so standardless that it authorizes

or encourages seriously discriminatory enforcement.’”

United States v. Kilbride, 584 F.3d 1240, 1257 (9th Cir.

2009) (quoting United States v. Williams, 553 U.S. 285, 304

(2008)). In an as-applied challenge, a statute is

unconstitutionally vague if it “fail[s] to put a defendant on

notice that his conduct was criminal.” Id. “For statutes . . .

involving criminal sanctions the requirement for clarity is

enhanced.” Id. (internal quotation marks omitted).

“[V]agueness challenges to statutes which do not involve

First Amendment freedoms must be examined in the light of

the facts of the case at hand.” United States v. Mazurie,

419 U.S. 544, 550 (1975). Thus, Defendant’s as-applied

challenge to 49 U.S.C. § 46505 turns on whether the statute

provided adequate notice to him that his particular conduct
8 UNITED STATES V. HARRIS

 Contrary to Defendant’s argument, § 46505(b)(1)’s lack of a scienter 2

element does not render it unconstitutionally vague. See Hotel & Motel

Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 973 (9th Cir. 2003).

was proscribed. Defendant knew that this particular knife had

been turned back by TSA. Moreover, there were signs in and

around the terminal that prohibited all knives. It should have

been clear to him that § 46505’s prohibition of “dangerous

weapon[s]” includes a pocketknife with a blade almost twoand-a-half inches long. Therefore, even considering the

enhanced requirement of clarity for criminal statutes, we

conclude that the statute gave Defendant adequate notice that

his conduct was prohibited.2

The only decision of which we are aware that addresses

an as-applied vagueness challenge to 49 U.S.C. § 46505

supports the conclusion we reach here. In United States v.

Hedrick, 207 F. Supp. 2d 710, 712 (S.D. Ohio 2002), a

passenger flew on an airplane “wearing a belt buckle

equipped with a knife that had a three-inch blade.” The court

held that § 46505 is not void for vagueness, because “the

common sense definition of ‘dangerous weapon’ provides

sufficient notice regarding the conduct that is prohibited . . .

[and] include[s] a knife with a three-inch blade.” Id. at 714.

We agree. Defendant’s attempt to distinguish Hedrick by the

length of the knife’s blade fails. The difference between a

three-inch blade and a blade of just under two-and-a-half

inches does not make the statute vague as applied to

Defendant, especially considering that he, unlike the

defendant in Hedrick, was an airport employee.

Our two prior decisions interpreting the scope of

§ 46505’s predecessor statute, 49 U.S.C. § 1472(l) (1964),
UNITED STATES V. HARRIS 9

also support our holding. The earlier statute prohibited

concealed “deadly or dangerous weapon[s]” on aircraft. Id.

In United States v. Wallace, 800 F.2d 1509, 1512–13 (9th

Cir. 1986), we held that a stun gun, as a matter of law, is a

dangerous weapon aboard an aircraft. We reasoned that stun

guns can cause serious permanent injury to the eyes and can

incapacitate many people at once, that even temporary

incapacitation of key personnel on an aircraft is dangerous,

and that “display of the gun is likely to provoke fear in the

surrounding passengers creating ‘an immediate danger that a

violent response will ensue.’” Id. at 1513 (quoting

McLaughlin v. United States, 476 U.S. 16, 18 (1986)); see

also McLaughlin, 476 U.S. at 17 (holding that the immediate

danger of a violent response to display of an unloaded firearm

is “independently sufficient” to support the conclusion that an

unloaded firearm is a “dangerous weapon” within the

meaning of the federal bank robbery statute)).

In United States v. Dishman, 486 F.2d 727, 732 (9th Cir.

1973), we reversed the conviction of a man who attempted to

board an airplane with a .22 caliber starter pistol. The pistol

was incapable of firing bullets because “[t]he barrel was

solidly plugged near the end and the cylinder cartridge

retaining holes or bores were half filled with metal and

incapable of receiving and holding cartridges.” Id. at 729.

We defined “deadly and dangerous weapon” as “one which

in its intended or readily adaptable use is likely to produce

death or serious injury.” Id. at 730 (emphasis omitted)

(quoting 94 C.J.S. Weapons § 6(c), p. 489). Because “[i]t

would take a machinist considerable time with [a] metal

cutting drill and saw to convert [the starter pistol] into any
10 UNITED STATES V. HARRIS

 This court decided Dishman before the Supreme Court held in 3

McLaughlin that the immediate danger of a violent response to the display

of an unloaded gun is sufficient to make that gun a “dangerous weapon”

under the federal bank robbery statute.

 Title 18 U.S.C. § 930(g)(2) provides: 4

The term “dangerous weapon” means a weapon,

device, instrument, material, or substance, animate or

inanimate, that is used for, or is readily capable of,

causing death or serious bodily injury, except that such

term does not include a pocket knife with a blade of less

than 2 1⁄2 inches in length.

(Emphasis added.)

semblance of an operating weapon,” the starter pistol was

merely an “inert object.” Id. at 732. 3

Like the stun gun in Wallace, a pocketknife can inflict, at

a minimum, permanent injury. It can incapacitate, at least

temporarily, key personnel on an aircraft. In the confines of

an aircraft, its display has the potential to provoke a violent

response. Unlike the starter pistol in Dishman, the

pocketknife at issue here is “readily adaptable” to a

dangerous use, even if it is not intended for that use. No

alteration is required to enable it to inflict serious bodily

harm. Therefore, Wallace and Dishman suggest that a

pocketknife with a blade of just under two-and-a-half inches

is a “dangerous weapon” aboard an aircraft.

Finally, Defendant argues that, because 18 U.S.C.

§ 930(g)(2) and 18 U.S.C. § 1992(d)(2) make specific

reference to “a pocket knife with a blade of less than 2 1⁄2

inches in length,” § 46505—which lacks a similar

reference—is unconstitutionally vague as applied. We 4
UNITED STATES V. HARRIS 11

Title 18 U.S.C. § 1992(d)(2) provides:

[T]he term “dangerous weapon” means a weapon,

device, instrument, material, or substance, animate or

inanimate, that is used for, or is readily capable of,

causing death or serious bodily injury, including a

pocket knife with a blade of less than 2 1⁄2 inches in

length . . . .

(Emphasis added.)

disagree. We have already explained why § 46505 gave fair

notice to this Defendant that this knife was proscribed. Two

other statutes—enacted at different times to address different

subjects—do not change our conclusion. If anything, by

stating that the term “dangerous weapon” in § 930(g)(2)

“does not include a pocket knife with a blade of less than 2 1⁄2

inches in length,” Congress implied that such knives would

be considered dangerous weapons but for their express

exclusion. And nothing in § 1992(d)(2) detracts from that

interpretation.

In sum, we conclude that 49 U.S.C. § 46505 gave

adequate notice to Defendant that a pocketknife with a blade

of slightly less than two-and-a-half inches is prohibited

aboard an aircraft. Therefore, we hold that the statute is not

unconstitutionally vague as applied.

AFFIRMED.