PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOSEPH WAYNE LYNCH, II, Defendant-Appellant. No. 16-1242

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:15-CR-00320-RM-1)

Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado, for Defendant-Appellant. Jason St. Julien, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Office of the Unite d States Attorney, Denver, Colorado, for Plaintiff-Appellee.

Before KELLY , McKAY , and McHUGH , Circuit Judges.

McKAY , Circuit Judge.

A jury found Defendant Joseph Wayne Ly nch II guilty of violating 49 U.S.C. § 46504, which prohibits the in-fl ight assault or intimidation of a flight crew member or FILED United States Court of Appeals Tenth Circuit 

### February 5, 2018
Elisabeth A. Shumaker Clerk of Court2 flight attendant that interferes with his or he r duties. He received a sentence of four months, followed by a three-year term of supervised release. On appeal, Defendant challenges the district court’s interpretation of the statute, the constitutionality of the statute, and the length of his sentence.
I. The conduct at issu e occurred in 2015 wh en Defendant was a first-class passenger on a flight from Philadelphia to Denver. Defe ndant, who had consumed at least six beers prior to boarding, began behaving in a loud, unruly manner. He repeatedly placed his hands on first-class flight a ttendant Kimberly Ander’s lower back as she was serving him beverages, which made her feel “very uncomfortable,” and sh e tried to move out of his reach each time. (Appellant’s App. Vol. IV at 181.) Later in the flight, Defendant “hugged [Attendant Ander] and kissed [her ] on the neck” on his way back from the bathroom, causing her to push him away and ask him not to do that. ( Id. at 181-82, 184.) Even after Attendant Ander verbally asked De fendant not to place his hand on her lower back, he continued to do so. She testifie d that this unwanted touching emotionally impacted her ability to do her duties. Defendant’s behavior led Attendant Ander to refuse to serve him a third in-flight drink, at which point he became “irate,” st arted yelling at her, stood up from his seat, and shouted profanities such as “f*** this airline.” ( Id. at 184-85.) Fearful that the situation was “going to go over the edge and beco me physical or violent at any moment,” Attendant Ander called one of the other flight a ttendants to come help her in first-class. ( Id. at 184-85, 194.) She also prepared a r ubber ice mallet, handcuffs, and a pot of hot3 coffee to use in case Defendant became violen t. Main cabin flight attendant Carolyn Scott then came to assist Attendant Ander in attempting to calm Defendant, leaving the third flight attendant in charge of the re maining 138 main cabin passengers, including an unaccompanied minor who had been in Attend ant Scott’s care. Attendant Scott asked Defendant to calm down, at which point he repeatedly yelled, “F*** you, c***.” ( Id. at 230.) Defendant also shouted “let’s go” at Attendant Scott and thre atened to “take this airline down” through a lawsuit and negative social media. ( Id. at 186.) The attendants stayed in communication with the flight crew throughout Defendant’s tirade, which the pilots could he ar over the ambient noise of the slipstream and engine, even with their headphones on. As Defendant’s behavior escalated, the captain gave the radios to his co-pilot so he could call ahead to dispatch and apprise them of the situation—an action that “[took] one ha lf of the safety marg in away” since the copilot had to fly the plane, man the radios, and receive weather upda tes without assistance during that period. ( Id. at 293-94.) Defendant’s volatile behavior lasted for roughly the last hour and a half of the flight. Attendant Scott testified that she never returned to the main cabin to help the third attendant with the ma in cabin duties because she was afraid to leave Attendant Ander alone with Defendan t in first class. Likewise, because of Defendant’s behavior, Attendant Ander was not able to perform all he r duties as the lead flight attendant. Defendant was arrested upon landing. While in custody, he continued his vulgar exclamations and verbal attacks on the authorities. Defendant was prosecuted for violation of 49 U.S.C. § 46504 and found guilty after a jury trial. The district court4 denied Defendant’s request for reduced senten cing based on acceptan ce of responsibility. Defendant now appeals.
II. Defendant contends that the district court erred in find ing that 49 U.S.C. § 46504 does not require specific intent, and in instruc ting the jury to that effect. Issues of statutory interpretation are reviewed de novo, United States v. Jackson , 248 F.3d 1028, 1029-30 (10th Cir. 2001), as are questions as to whether jury instruc tions correctly stated the law, United States v. Sharp , 749 F.3d 1267, 1280 (10th Cir. 2014). In determining whether § 46504 is a general or specific intent statute, we look first to the plain language of the statute. See, e.g., United States v. Saenz-Gomez , 472 F.3d 791, 793-94 (10th Cir. 2007); United States v. Morgan , 922 F.2d 1495, 1496 (10th Cir. 1991). “If the statutory language is cl ear, our analysis ordinarily ends.” Jackson , 248 F.3d at 1030. In relevant part, § 46504 provides: An individual on an aircraft in the sp ecial aircraft jurisdiction of the United States who, by assaulting or intimidati ng a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ab ility of the member or attendant to perform those duties, or attempts or co nspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. 49 U.S.C. § 46504. For genera l intent crimes, the act need only be done “voluntarily and intentionally, and not because of mistake or accident.” United States v. Blair , 54 F.3d 639, 642 (10th Cir. 1995) (inter nal quotation marks omitted). In contrast, specific intent crimes require that a defendant act “not only with knowledge of what he is doing, but [also] with the objective of co mpleting some unlawful act.” Id . Here, nothing in § 46504 describes a specific mens rea . Where specific intent is not required, criminal statutes are5 usually read to require “only that a defenda nt know the facts that make his conduct illegal.” Jackson , 248 F.3d at 1030. It appears from the plain-language analysis that the district court correctly characterized § 46504 as a general intent statute. Reading § 46504 as a general intent statute is consistent with previous interpretations of this law th roughout our sister circuits and among our district courts. See, e.g. , United States v. Persing , 318 F.App’x 152, 154 (4 th Cir. 2008) (“[Section] 46504 does not require specific intent.”); United States v. Grossman , 131 F.3d 1449, 1452 (11th Cir. 1997) (Section 46504 “d efines a general intent crime”); United States v. Compton , 5 F.3d 358, 360 (9th Cir. 1993) (“ [Section 46504’s predecessor statute 1 ] does not require a specific intent.”); United States v. Hicks , 980 F.2d 963, 974 (5th Cir. 1992) (“General intent is all that Congress required, as is evident from . . . Congress’ failure to use a term such as ‘willfully,’ ‘i ntentionally,’ or ‘knowingly.’”); United States v. Meeker , 527 F.2d 12, 14 (9th Cir. 1975); United States v. Murphy , 556 F. Supp. 2d 1232, 1235-36 (D. Colo. 2008). Moreover, a general intent interpretation of § 4 6504 best achieves the statute’s legislative purpose of protecting air-travel safe ty. As the Ninth Circuit explained with respect to § 46504’s predecessor statute: [T]he goal which Congress s ought in this provision of the statute was to deter the commission of crimes which, if committed on the terrain below,

1 Cases decided prior to 1994 address § 46504’ s predecessor statute, 49 U.S.C. § 1472(j), which prohibited assaulting, in timidating, or threatening a ny crew member or flight attendant “so as to interfere with the perfo rmance by such member or attendant of his duties or lessen the ability of such member or attendant to perform his duties.” As the Eleventh Circuit noted, “[t]here is no indicati on of any congressional intent to change the meaning of the statutory langua ge [from § 1472(j) to § 46504] as it relates to th[e] issue [of intent].” Grossman , 131 F.3d at 1451-52; see also H.R. Rep. No. 103-180, at 5 (1993) (“[T]his bill makes no subs tantive change in the law.”).6 might be considered relatively minor, but when perpetrated on an aircraft in flight would endanger the lives of ma ny. The primary danger to be averted is not the formation of a specific intent to interfere with aircraft operations but the criminal act of an assault [or] intimidation . . . upon airline personnel during flight. We therefor e construe [§ 46504’s predecessor statute] as a general intent crime, in harmony with the statutory purpose of safeguarding flight personnel from a ny statutorily described acts which would interfere with their efficient functioning. Meeker , 527 F.2d at 14 (internal c itations omitted). Defendant argues, however, that this legislative history and the prio r decisions interpreting § 46504 as a general intent statute are no longer relevant after Elonis v. United States , 135 S. Ct. 2001 (2015). Elonis concerned a challenge to a jury instruction ex plaining the elements of 18 U.S.C. § 875(c), which prohibits transmitting in interstate co mmerce “any communica tion containing any threat . . . to injure the person of another.” Id. at 2004. Defendant reads Elonis as requiring specific intent befo re a defendant’s words can be construed as a criminally actionable threat under § 46504. In rejecting this exact argument, the Fift h Circuit explained, “[t]he mental state required [under § 875(c)] is not in the crime here.” United States v. Ziba , 653 F.App’x 809, 810 (5th Cir. 2016). We share this view. To the extent that Elonis addresses criminal statutory interpretation beyond § 87 5(c), it merely reiterates existing precedent that “we read into the statute only that mens rea which is necessary to separate wrongful conduct from otherwise innocent conduct.” Elonis , 135 S. Ct at 2010 (internal quotation marks omitted). A general intent reading of § 46504, which still requires that a defendant’s conduct be voluntary a nd deliberate, readily satisfies Elonis ’ mens rea standard.7 Defendant attempts to distin guish his arguments from thos e considered in previous cases by focusing on the mens rea requirements of the assault or intimidation elements of § 46504. He asserts that previous cases th at “focused solely on the interference with flight crew as a stand-alone element ( e.g., Persing , Grossman ) . . . do not answer the questions posed here.” (Appellant’s Br. at 20 .) As the district court’s jury instruction correctly explained, assault has two commonl y recognized legal meanings: (1) “when a person intentionally threatens to hurt someone else” and has the appare nt ability to do so, and (2) when a person comm its a voluntary, deliberate act “which constitutes an offensive touching.” (Appellant’s App. Vol. IV at 455.) This second type of assault, or common law battery, does not require specif ic intent—only that the touching is “unwanted by the person touched and offensive to persons of ordinary sensibilities.” Id. ;

see, e.g , United States v. Mason , 2017 WL 4479371, at *5-6 (10th Cir. Oct. 5, 2017) (holding that common law battery can be accomplished by the slightest offensive touching). Defendant acknowledges that “the [d istrict] court was correct with respect to the ‘interference with flight cr ew duties by assault’ formula tion of the offense,” but then argues that the same statutory interpretation does not apply to intimidation because it is not a “stand-alone” offense. (Appellant’s Br. at 18.) Defendant’s reading of the statute asks t oo much. Nothing in the plain language of the statute implies that an additional specific intent mens rea should be read into the “intimidation” element. I ndeed, doing so would create a cumbersome interpretation of the statute in which a different mens rea applied to separate means of committing the same crime without any textual support that Congress intended such a division. We are8 loath to read a mens rea requirement into the statute th at could potentially undermine Congress’s regulatory purpose of promoting airline safety. See Hicks , 980 F.2d at 971 (“Assuring the utmost in airlin e safety is the clear purpose behind [§ 46504’s predecessor statute].”). Flight attend ants and crew are trained on how to handle unpleasant passengers and deescalate tensions. If a pass enger’s behavior is intimidating enough to prevent an attendant or crew member from fully performing his or her duties as usual, this moves beyond normal aircraft protocol a nd undermines the safety of everyone on the aircraft. The offending passenger should not be able to avoi d culpability for this dangerous behavior by simply arguing that he or she did not inte nd to intimidate the flight crew or attendants. Yet, a specific in tent reading of the in timidation element would do just that. For the reasons discussed, we conclude that § 46504 is a general intent statute, as the district court’s jury instructions properly explained. Defendant also argues that § 46504 is unconstitutionally overbro ad, both facially and as applied, because it punishes a subs tantial amount of protected free speech. Challenges to the constitu tionality of a statute ar e reviewed de novo. United States v.

Brune , 767 F.3d 1009, 1015 (10t h Cir. 2014). The court begi ns its review with the presumption that the statute is constitutional . Id. at 1023. Defendant asserts that § 46504 is facia lly overbroad because it focuses on speech or conduct that causes a person of ordinary sensibilities to fear bodily harm or alter his or her duties. Because conflicts frequently ar ise between airline customers and flight attendants, Defendant contends th at this could give rise to arbitrary prosecution under the statute for nothing more than voicing a comp laint, which is protected speech. With9 respect to his as-applied challenge, Defendant maintains that all of the things he said during the flight (e.g., demanding more alcohol , calling the flight attendants foul names, threatening to “take down th e airline” with negative publ icity) were protected speech under the First Amendment. He acknowledges that his speech was offensive, but argues that it did not provoke immediate violence or communicate a serious threat of harm. Section 46504 prohibits assault or intimid ation of a flight crew member that interferes with that person’s du ties on an airplane during flight. In doing so, the statute sets out a content-neutral prohibition on conduct in a specific time, place, and manner. Content-neutral restrictions are constitutional if they are narrowly tailored to serve a significant governmental interest and leave open ample channels for communicating. See, e.g., Ward v. Rock Against Racism , 491 U.S. 781, 791 (1989). Here, the statute serves the significant governmental interest of prohibiting conduct that could otherwise present a significant threat to public safety for airline passengers and employees. See Hicks , 980 F.2d at 971-72; Meeker , 527 F.2d at 14. Moreover, nothing in the statute prohibits profanity or any other content, per se. See Hicks , 980 F.2d at 970 (“Rather than discriminating against protected profanity or vulgarity, the statute reasonably regulates the time, place, and manner of speech, irrespec tive of its particular content.”). Section 46504 is not facially overbroad. Likewise, there is no cons titutional problem with the statute’s application to Defendant’s case. His conduct falls squarely in the type of behavior prohibited under the statute. Screaming in flight attendants’ face s, shouting vile insults at them, and refusing to calm down all combined to in timidate the flight attendants to a degree that interfered10 with the performance of their duties. Mo reover, his repeated offensive touching of Attendant Ander caused her extreme discomfo rt and emotionally interfered with her ability to do her duties. Defendant also argues that § 46504 is unconstitutionally vague because it does not adequately inform a passenger what constitute s criminal behavior. Challenges to a statute for being unconstitutionally vague are reviewed de novo. United States v. Wenger , 427 F.3d 840, 851 (10th Cir. 2005). Defendant asserts that there is no clear line between impolite conduct and criminal conduct because the district cour t’s reading of the statute turn s on whether the flight crew member or attendant feels threatened and cha nges his or her behavior as a result. With respect to his own conduct, Mr. Lynch argues that “[i]n a case su ch as this, where a touching is slight,” involving “merely touch[i ng] a flight attendant, or even kiss[ing] her without her consent,” “it is difficult for an or dinary person to tell whether he ha[d] just committed a felony.” (Appellant’s Br. at 38- 40.) He further suggests that the only interference with the flight attendant dutie s this conduct may have caused was that “someone in row 16 has to wait five minutes before getting a soda refill.” Id . Lastly, Mr. Lynch disputes the district court’s asserti on that it could only find the statute to be unconstitutionally vague if it were vague in a ll of its applications and that the vagueness challenge must be rejected if some improper conduct clearly fell w ithin the scope of the statute, as was the case here

. Mr. Lynch argues that this holding was incorrect under the Supreme Court’s reasoning in Johnson v. United States , 135 S. Ct. 2551, 2560-61 (2015) (citations omitted).11 In Johnson , the Supreme Court rejected as mere “tautology” the view that in order for a “statute to be vague, it [must be] vague in all its applications.” Id . at 2561. Thus, we undertake a full vagueness analysis. To withstand a vagueness challenge, a pe nal statute must “d efine the criminal offense with sufficient definiteness that ordi nary people can unders tand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement.” United States v. Orona , 724 F.3d 1297, 1310 (1 0th Cir. 2013) (internal quotation marks omitted). S ection 46504 readily satisfies this standard. A person of ordinary intelligence could read it and know what type of conduct is prohibited (assault or intimidation of flight crew or attendants ), where it is prohibited (on a plane, in-flight), and what result the statute is intended to prevent (reduction in aircraft safety). The statute also makes clear when this law would be en forced: if an in-flight act of assault or intimidation against flight crew members or attendants interferes with or lessens the ability of the crew to perform their duties. Looking at the particular circumstance s of this case, a person of ordinary intelligence could foresee that repeatedly touching a flight attendant on her lower back, hugging her and kissing her ne ck without her permission, screaming profanities in her face, threatening economic harm to the airline, and refusing to calm down are “actions which could inhibit the performance of an attendant’s duties.” United States v. Tabacca , 924 F.2d 906, 913 (9th Cir. 1991). Finally, the statute is narrowly tailored to serve a substantial government interest and “does not cast a sweeping net at amor phous categories of speech” or reach a12 substantial amount of constitu tionally protected speech. Hicks , 980 F.2d at 972. For all these reasons, we conclude that § 46504 is not unconstitutionally vague. Lastly, Defendant claims that the dist rict court erred in not adjusting his sentencing level on the basis of acceptance of responsibility. Denials of a sentencing adjustment for acceptance of re sponsibility are reviewed for cl ear error and are entitled to great deference. United States v. Sarracino , 340 F.3d 1148, 1173-74 (10th Cir. 2003). The Sentencing Guidelines allo w for a two-level decrease in the offense level “[i]f the defendant clearly demonstrates accepta nce of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Relying on United States v. Gauvin , Defendant maintains that he meets the acceptance-o f-responsibility requirements becaus e he did not contest the facts of his conviction, only the legal issue of wh ether these actions violated the statute. 173 F.3d 798, 806 (10th Cir. 1999). Defendant insi sts that the district court’s error was not harmless because the bottom end of the lowe r sentencing level woul d have allowed for less prison time than he received. After reviewing the district court’s sent encing decision, we find no evidence of error. Defendant did not clear ly demonstrate acceptance of responsibility because he disputed several factual contentions at trial— arguing, for instance, that his touching of Attendant Ander was meant only to get her attention and, later, as a conciliatory gesture. (Appellant’s Br. at 8); ( contra Appellant’s App. Vol. IV at 181-82 (Attendant Ander testifying that Defendant’s hand on her ba ck “wasn’t just like trying to get my attention.”)); see also U.S.S.G. § 3E1.1(a) cmt. n.1( A) (“[A] defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has13 acted in a manner inconsistent with acceptan ce of responsibility.”). As the district court explained, “[Defendant] presen ted a defense that was not an acceptance of responsibility. It was, in essence, This stuff is just [a] loud, drunk guy , and It is not intimidation, and it is not assault . In other words, He is not guilty . . . .” (Appellant’s App. Vol. IV at 486.) The district court also correctly consid ered Defendant’s pre-trial conduct, which included continued profanity, sc reaming, and aggression towa rd the arresting officers who met him at the gate once the plane land ed. (Appellant’s App. Vol. II at 43); see also U.S.S.G. § 3E1.1(a) cmt. n.2 (“[A] dete rmination that a defendant has accepted responsibility will be based primarily upon pre- trial statements and conduct.”). This was not the behavior of a pers on who had accepted responsi bility for his actions. Finally, Defendant’s reliance on Gauvin is unpersuasive. As discussed above, unlike the defendant in Gauvin , Defendant has not “admitted to all the conduct with which he was charged.” 173 F.3d at 806. It sh ould also be noted that in our decision to uphold the acceptan ce of responsibility reduction in Gauvin , “we merely accorded the district court the requisite deference” and “did not indicate that other sentencing courts would be obliged to reach the same conclusion on similar facts.” United States v. McGehee , 672 F.3d 860, 877 (10th Ci r. 2012). Thus, “in light of the operative deferential standard of review, Gauvin ’s outcome does not dictate the appropriate resolution here . . . even if the facts were similar.” United States v. Herriman , 739 F.3d 1250, 1257 (10th Cir. 2014) (emphasis omitted). Instead, we must look to the general legal principles animating Sentencing Guideline § 3E1.1, as the district court properly did. Ultimately, this is not the “rare situation[]” in whic h a defendant has “clearl y demonstrate[d] an14 acceptance of responsibility fo r his criminal conduct even though he exercises his constitutional right to a trial.” U.S.S.G. § 3E1.1(a) cmt. n.2. For this reason, we defer to the district court’s sentencing decision.

III. For the foregoing reasons, we AFFIRM Defendant’s conviction and sentence.