United States District Court, Eastern District of New York
March 26, 2002
UNITED STATES OF AMERICA,
HATUEY GUERRERO, DEFENDANT.
The opinion of the court was delivered by: Gershon, District Judge.
Defendant Hatuey Guerrero pled guilty on December 5, 2001 to
violating 49 U.S.C. § 46504, which provides that "[a]n
individual on an aircraft in the special aircraft jurisdiction
of the United States who, by assaulting or intimidating 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 ability of the member or attendant to perform those
duties, shall be" guilty of a crime.
The parties agree that Guideline § 2A5.2, Interference with
Flight Crew Member or Flight Attendant, is the applicable
guideline. Defendant challenges the Base Offense Level
calculation of 18 sought by the government and the probation
department. Under Guideline § 2A5.2(2), the Base Offense Level
is raised from 6 to 18 "if the offense involved recklessly
endangering the safety of the aircraft and the passenger." The
parties' dispute requires a discussion of the legal issue of the
meaning of this enhancement. Defendant treats the terms
"endanger" and "harm" as synonymous and they are
not. Endangerment "means a threatened or potential harm and does
not require proof of actual harm." United States v. Poe,
215 F.3d 1335 (9th Cir. 2000); see also United States v. Jenny,
7 F.3d 953, 955 (holding that a defendant endangered an aircraft
and passengers where a captain testified he felt threatened by
defendant standing near the cockpit, worried about a possible
scuffle, and was concerned that a defendant could inflate a
passenger slide inside the plane).
Defendant urges this court not to follow Poe and to find
that 2A5.2(a)(2) applies only if there is actual harm to the
aircraft and passengers. Such a construction would mean that
this Base Offense Level would apply only when an aircraft
actually crashed or suffered other damage as a result of a
defendant's action. Had this been the intended meaning, the term
"harming" would have been more appropriate than endangering,
which means "putting someone or something in danger; expos[ing]
to peril or harm." BLACK'S LAW DICTIONARY 547 (7th ed. 1999).
It is the government's burden to prove by a preponderance of
the evidence that the enhancement of the offense level is
correct. Even if I applied a heightened clear and convincing
evidence standard, in light of the degree of increase to the
base offense level, I would find that the government had met its
burden. At an evidentiary hearing in aid of sentencing, the
government offered the unimpeached and wholly credible testimony
of Taylor Thorben Williams, Jr., the American Airlines pilot who
captained Flight 789, on May 18, 2001 from JFK Airport to Santo
Domingo, on which defendant Guerrero was a passenger. He
testified that he was notified over the interphone by a crew
member that there was an unruly passenger who would not listen
to the crew's directions and appeared to be intoxicated.
Reluctant to leave the cockpit, which he does only as briefly as
possible, he asked the crew to attempt to control the passenger.
For safety purposes, the design of the plane contemplates that
two pilots will be in the cockpit, and it would be unsafe if one
of the two were out of the cockpit for a prolonged period.
However, a crew member called back in a few minutes and advised
that the passenger was physically abusive and could not be
controlled. At that time, Captain Williams left the cockpit
briefly and entered the cabin. He tried to talk to the
passenger, who he identified as defendant Guerrero, and told him
to return to his seat, but Guerrero did not respond other than
to call him "Captain" and push him.
The testimony of the captain, who had had 35 years of civilian
and military experience as a pilot, establishes that defendant's
actions exposed the aircraft and passengers to harm, i.e.,
that he recklessly endangered their safety within the meaning of
the guidelines. Captain Williams testified that he had to leave
the cockpit to deal with the defendant, when he learned from the
flight attendant that she could not handle the situation
herself. Captain Williams testified that this increased the risk
to the safety of the aircraft, which is designed to be flown by
two pilots. Defendant further endangered the aircraft and
passengers when he pushed Captain Williams, because this exposed
the aircraft and crew to the danger of having their captain
incapacitated. Not only did Captain Williams testify that he
thought defendant was making the flight unsafe, but his actions
confirm that he believed that defendant was endangering the
aircraft and passengers. Captain Williams testified that he only
left the cockpit when he
concluded there was a potential danger to the aircraft, and,
upon returning to the cockpit, Captain Williams turned the
aircraft around and returned to New York City because he
concluded that it was unsafe to continue on to Santo Domingo.
Moreover, the signed statements submitted by the flight crew
show that the passengers suffered actual harm. Flight Attendant
Lisa Vera claims that defendant "was yelling at [flight
attendant] # 1 and pushing him and other [flight attendants] in
my work area." Ms. Vera states that defendant asked to write a
note to the pilot, but when she went to get a pen, he "grabbed
my breasts and started kissing me while I was pushed up against
the galley counter." Ms. Vera calmed defendant down and sat with
him in the back of the aircraft. But when she picked up the
telephone to call for coffee, he:
blew up and hit me. Two male [passengers] (large)
stepped in to control him. I told them to try not to
threaten him because he had told me he was going to
kill us all and he had a gun (he put his finger (as
if it were a gun)) to my head. The two men followed
this man around the [aircraft] trying to keep him
calm. The [defendant was] hitting these two men and
the[y] continued to remain calm for awhile until he
hit one of the men so hard he almost fell over.
At that point, some passengers tied defendant up. Flight
Attendant Cappers also states that defendant said he was going
to "kill us all" and threatened flight attendants, passengers,
and the captain. He also states defendant hit him in the arm.
Flight Attendant Torres confirms that defendant hit a large
Defendant argues that the signed statements by flight
attendants should not be admitted because the evidence is
hearsay. However, "hearsay information may unquestionably be
used in the discretion of a sentencing judge and given such
weight as appears in his discretion to be merited. Such
information does not violate due process requirements." Hili v.
Sciarrotta, 140 F.3d 210, 215 (2d Cir. 1998); see also United
States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978). Here, the
flight attendants' statements are reliable and entitled to
consideration. They are internally consistent and
uncontradicted. The statements are signed, and the forms on
which the statements were made indicate that false statements
are punishable as a class A misdemeanor. Further, the Captain's
testimony is consistent with the content of the statements.
Finally, defendant does not claim that he lacked the requisite
mens rea under § 2A5.2(a)(2). Certainly his voluntary
intoxication, assuming that he was intoxicated and that that
played a part in his conduct, would not negate the reckless
nature of his conduct. See Jenny, 7 F.3d at 956-57; United
States v. Ignagni, 1993 WL 366463 *4 n. 2 (4th Cir. 1993).
For these reasons, Guideline § 2A5.2(2) was applied to the
defendants sentencing on March 25, 2002.
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