United States Court of Appeals

For the Eighth Circuit

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No. 13-2728

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Michael A. Smith

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the District of Nebraska - Omaha

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 Submitted: May 16, 2014

 Filed: June 27, 2014 

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Before RILEY, Chief Judge, BEAM and SHEPHERD, Circuit Judges.

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RILEY, Chief Judge.

This case calls upon us to interpret 18 U.S.C. § 39A(a) for the first time. This

subsection imposes criminal liability on anyone who “knowingly aims the beam of a

laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or

at the flight path of such an aircraft.” 18 U.S.C § 39A(a). A jury convicted Michael
A. Smith of violating § 39A(a) after which the district court1

 sentenced him to 24

months in prison and 3 years of supervised release. Smith challenges his conviction,

arguing the district court should have read § 39A(a) to provide Smith a mistake-offact defense based upon his reasonable belief that his laser would not reach the

targeted aircraft. Claiming the word “aims” “carries with it an ‘intent to hit’ the

object,” Smith argues the district court erred in (1) excluding expert testimony as to

the perceived range of a laser, and (2) rejecting his defense instructions. Because we

do not read § 39A(a) to require an “intent to hit,” we affirm.2

I. BACKGROUND

A. Factual Background

In the early morning hours of July 11, 2012, authorities in Omaha, Nebraska,

learned the cockpit of an inbound Boeing 737 had been illuminated by a laser. The

local police department dispatched a helicopter to locate the laser. As the police

helicopter approached the approximate location of the laser’s source, Smith, standing

in his backyard, directed his laser pointer’s green beam at the helicopter, illuminating

its cockpit. Smith’s beam struck the helicopter several times, but when the helicopter

got close, his beam disappeared. Unable to pinpoint Smith’s location, the helicopter

was forced to depart. But as the helicopter began to do so, Smith again shone his

laser’s beam on the helicopter. The helicopter resumed its approach until, again, the

beam disappeared. In what the helicopter pilots described as a back-and-forth game

of “cat-and-mouse,” the helicopter approached Smith when the laser was visible and

feigned departure when it was not. Ultimately, the pilots were able to identify Smith’s

exact location and dispatched a ground officer.

1

The Honorable John M. Gerrard, United States District Judge for the District

of Nebraska.

2

We have appellate jurisdiction under 28 U.S.C. § 1291.

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The ground officer found Smith standing in his backyard pointing a green laser

pointer skyward in the direction of the helicopter. The officer handcuffed Smith and

removed him for questioning. According to the arresting officer’s testimony, Smith

“stated that earlier he had been shining [the laser] at aircraft that he thought were far

enough away that it wouldn’t actually reach those aircraft.” Smith “denied actually

shining [the laser] at the police” helicopter.

B. Procedural History

A grand jury indicted Smith of knowingly aiming a laser pointer’s beam at the

police helicopter in violation of 18 U.S.C. § 39A(a). The day before trial, Smith

submitted proposed jury instructions, including a theory-of-defense instruction

proposing he could not have “‘knowingly’ aimed the beam at the aircraft” if he

“mistakenly believed that the laser beam could not travel the distance necessary to

reach the aircraft.”

On the first day of trial, the parties asked the district court to provide its

preliminary interpretation of § 39A(a) and asked, in particular, whether the statute

required the government to prove Smith believed his laser’s beam would strike the

aircraft. The district court concluded, “[§] 39A is violated whenever a person points

a laser pointer at what the person knows to be an aircraft, regardless of that person’s

belief, whether it be reasonable or not, that the laser pointer will not reach the aircraft

or affect its crew.” First, the district court noted “the term ‘knowingly’ . . . clearly

applies to what the laser is pointed at”—that is, “the defendant has to know that he’s

aiming . . . a laser beam at an aircraft” as opposed to believing the target is “a shooting

star” or “a satellite.” The district court then reasoned the central question revolved

around the meaning of “knowingly aim.” The district court read “to aim at” as simply

meaning “to point[ ]at,” reasoning this definition was supported by the statutory text’s

common meaning, its legislative history, and the circumstances underlying the

statute’s enactment. Based on this interpretation, the district court ultimately refused

Smith’s proposed theory-of-defense instruction.

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During the second day of trial, Smith called a physics professor, Dr. David

Sidebottom. Following the government’s objection, Dr. Sidebottom testified during

an offer of proof that a layer of atmosphere close to the ground contains dust which

reflects the laser’s beam. Dr. Sidebottom explained that once the beam clears this dust

layer, there can be fewer particles to reflect the laser, making it sometimes appear as

if the beam stops abruptly when it actually continues on. The district court excluded

Dr. Sidebottom’s testimony because under the district court’s interpretation of

§ 39A(a), it did not matter whether Smith believed—reasonable or not—that the beam

could reach the helicopter.

The jury found Smith guilty of violating § 39A(a). Smith now appeals his

conviction.

II. DISCUSSION

Smith’s appeal targets the district court’s exclusion of Dr. Sidebottom’s

testimony and rejection of Smith’s proposed jury instructions. As both parties agree,

the foundation of these challenges and the crux of this appeal is the definition of the

phrase “knowingly aim.” Section 39A(a) covers an offender who “knowingly aims

the beam of a laser pointer at an aircraft . . . or at the flight path of such an aircraft.” 

Smith contends this language requires a defendant to knowingly point a laser beam

intending the beam to strike the targeted object, whereas the government defends the

district court’s understanding by arguing an offender need only direct the beam

towards the target. We review de novo this question of statutory interpretation. See

United States v. Zaic, 744 F.3d 1040, 1042 (8th Cir. 2014).

“As in all such cases, we begin by analyzing the statutory language,” Hardt v.

Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010), “giv[ing] words their

‘ordinary, contemporary, common meaning’ unless they are otherwise defined in the

statute itself,” Hennepin Cnty. v. Fed. Nat’l Mortg. Ass’n, 742 F.3d 818, 821 (8th Cir.

2014) (quoting United States v. Friedrich, 402 F.3d 842, 845 (8th Cir. 2005)). If the

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language’s meaning is unambiguous when “read in its proper context,” McCarthy v.

Bronson, 500 U.S. 136, 139 (1991), “then, this first canon is also the last: ‘judicial

inquiry is complete,’” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)

(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). Here, our inquiry begins

and ends with this first step.

A. Text and Context

1. Knowingly

Smith’s opening salvo is his argument that “the district court only applied

‘knowingly’ to the ‘aircraft’ element of § 39A and did not apply ‘knowingly’ to the

‘aim the beam of a laser pointer at’ element.” This argument misses its mark. The

district court never suggested “knowingly” modifies only the “aircraft” element but

instead recognized there was no question the mens rea requirement modified the

“aircraft” element and then moved on to explain the real task at hand was determining

“how ‘knowingly’ modifies ‘aims’” and, more importantly, what “Congress meant by

the word ‘aim.’” Thus, contrary to Smith’s contention, the district court correctly

recognized “knowingly” modifies both the “aim” and “aircraft” elements. See, e.g.,

United States v. Bruguier, 735 F.3d 754, 758 (8th Cir. 2013) (en banc) (noting our

presumption is to read “‘a phrase in a criminal statute that introduces the elements of

a crime with the word “knowingly” as applying that word to each element,’” unless

“‘special contexts or . . . background circumstances’” call for a different reading

(omission in original) (quoting Flores-Figueroa v. United States, 556 U.S. 646, 652

(2009))).

Nor does the district court’s interpretation of “to aim at”—that is, “to point

at”—wash away the “knowingly” requirement. Under the district court’s

interpretation, “knowingly” still modifies “aim” to require that an offender understand

he or she is pointing or directing the laser’s beam at an aircraft, regardless whether the

offender intends to strike the aircraft.

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There is thus no real disagreement as to whether “knowingly” modifies “aim.” 

Smith’s real argument, as the district court correctly observed, comes down to the

proper construction of the word “aim.”

2. Aim

Smith contends the statute’s use of “aim” unambiguously “carries with it an

‘intent to hit’ the object” targeted. This word’s common American usage necessitates

no such intent requirement. See, e.g., New Oxford American Dictionary 33 (3d ed.

2010) (defining “aim” paired with a direct object as “point or direct (a weapon or

camera) at a target: aim the camcorder at some suitable object”); The American

Heritage Dictionary of the English Language 36 (5th ed. 2011) (defining the verb as

“[t]o direct (a weapon or camera) toward a point” and “[t]o direct or propel (an object,

such as a ball) toward a point”).

The district court looked to Webster’s Third New International Dictionary 45

(1993), which defines the verb “to aim” as “to point in a particular direction or at a

particular object.” Smith asserts “the district court read the wrong definition from

Webster’s Third New International.” In his brief and at oral argument, Smith

proposed one of the dictionary’s other definitions: “to direct or point (as a weapon or

missile) at or so as to hit an object.” Id. This, Smith vigorously asserts, is the

“proper” definition and the one which “Congress intended to be used.” But even if

that were true (and we see nothing in the statute mandating the use of this particular

definition), Smith’s preferred definition still falls short. Under this disjunctive

definition, a defendant can “aim” by directing the beam “at . . . an object” or “so as

to hit an object.” Id.; see also Random House Webster’s Unabridged Dictionary 42

(2d ed. 2001) (providing the transitive definition: “to position or direct (a firearm, ball,

arrow, rocket, etc.) so that, on firing or release, the discharged projectile will hit a

target or travel along a certain path” (emphasis added)). The usage examples for this

definition show that “a small cannon” can be “aimed into space” and “a camera” can

be “aimed at the scene.” Webster’s Third New International, supra, at 45. Thus,

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aiming may accompany an intent to strike the target, but the word’s common meaning

is not limited to such instances.

Ordinary use of the word “aim” confirms this understanding. Consider the

familiar phrase “Ready, aim, fire!” A ceremonial commander at a military memorial

orders the riflemen to ready their rifles, aim the barrels, and then pull the triggers. The

riflemen dutifully obey the second of these three orders not by manifesting any

present intent for either barrel or bullet to strike any target, but instead by directing

the rifle’s gaze. By using the term “aim at” rather than some result or contact oriented

term—for instance, “knowingly illuminating an aircraft”—Congress specified the act

of directing the active laser pointer’s beam, not of manifesting one’s intent to strike

the target.

Congress’s clear choice is amplified by the “‘the design of the statute as a

whole and . . . its object and policy.’” Dada v. Mukasey, 554 U.S. 1, 16 (2008)

(quoting Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991)). By also

criminalizing the act of knowingly aiming at an aircraft’s “flight path,” Congress

illustrates its intent to discourage those who would direct the beam so as to harry the

aircraft without necessarily intending to strike it—including the individual who

knowingly directs the laser toward a recognized aircraft, but neglects to consider the

power of his device or the effective range of his laser.

Relying on plain text and common usage, we conclude § 39A(a)’s requirement

that the laser beam be “knowingly aim[ed]” does not require an offender to intend the

beam to strike the aircraft or flight path in question.3

3

Smith seeks support in legislative history, focusing considerable energy on the

passing word-usage in select statements by legislative proponents. We are not

distracted from the plain meaning of a criminal statute by such “legislative

incunabula,” Taylor v. United States, 495 U.S. 575, 603 (1990) (Scalia, J.,

concurring). See United States v. Jungers, 702 F.3d 1066, 1069 (8th Cir. 2013). If

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B. Lenity

The rule of lenity requires a criminal statute be construed in a defendant’s favor

where, “‘after considering text, structure, history, and purpose, there remains a

grievous ambiguity or uncertainty in the statute, such that the Court must simply guess

as to what Congress intended.”’ United States v. Castleman, 572 U.S. ___, ___, 134

S. Ct. 1405, 1416 (2014) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). This

rule is based on the need to provide “fair warning[,] . . . in language that the common

world will understand, of what the law intends to do if a certain line is passed.” 

United States v. Bass, 404 U.S. 336, 348 (1971) (internal quotation omitted). Yet

penal laws “should not be construed so strictly as to defeat the obvious intention of

the legislature.” United States v. Warren, 149 F.3d 825, 828 (8th Cir. 1998). 

“[G]rievous ambiguity or uncertainty” necessary to invoke lenity requires more than

“[t]he simple existence of some statutory ambiguity” because “most statutes are

ambiguous to some degree.” Muscarello v. United States, 524 U.S. 125, 138 (1998)

(internal quotation omitted).

Smith does not invoke this rule, instead contending the statute is unambiguous

in his favor. As we have already explained, § 39A(a)’s common and ordinary

meaning gave Smith “fair warning” his conduct violated the law. Bass, 404 U.S. at

348.

III. CONCLUSION

Because the district court correctly interpreted 18 U.S.C. § 39A(a), it did not

err in excluding Dr. Sidebottom’s irrelevant testimony and rejecting Smith’s

inapposite proposed instructions. We affirm.

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we were to consider such sources in this case, the legislative history here is, “as usual,

inconclusive,” Flores-Figueroa, 556 U.S. at 658 (Scalia, J., concurring).

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