United States of America v. William Turner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIAM TURNER,
Defendant-Appellant.
No. 17-10299
D.C. No. 1:16-cr-00207-SOM
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
Argued and Submitted February 12, 2019
Honolulu, Hawaii
Before: TALLMAN, BYBEE, and N. RANDY SMITH, Circuit Judges.
William Clark Turner appeals the district court’s judgment of conviction
after a jury trial on charges that he interfered with a flight attendant discharging her
duties by intimidation, in violation of 49 U.S.C. § 46504. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. Turner argues that the district court’s instruction defining “intimidation” is
reversible error. We do not reach this argument because Turner has waived it.
United States v. Burt, 143 F.3d 1215, 1217 (9th Cir. 1998) (“A defendant’s right to
challenge a jury instruction is waived if the defendant considered the controlling
law and ‘in spite of being aware of the applicable law, proposed or accepted a
flawed instruction.’”) (quoting United States v. Perez, 116 F.3d 840, 845 (9th Cir.
1997) (en banc)). Because Turner’s trial counsel approved the definition when he
signed the parties’ joint proposed jury instructions, and because those proposed
instructions explicitly cited the authority Turner now relies on to argue for
reversible error, this argument is waived under the invited error doctrine.
2. As to the specific issue to which he did object at trial, i.e., that the word
“knowingly” should have appeared in the court’s jury instruction before the word
“intimidate,” we cannot conclude there was error because “knowingly” does not
appear in the statute. See 49 U.S.C. § 46504. We have previously held that the
statute Turner was charged with violating is a “general intent” crime, United States
v. Meeker, 527 F.2d 12, 14 (9th Cir. 1975), and the word “intimidation” is
adequate to describe the mens rea for the commission of voluntary acts which
produce it. In any event, any error would be harmless beyond a reasonable doubt.
See Kilbride, 584 F.3d at 1247. Turner, among other things, threatened to “break
the neck” of other passengers during the altercation. The evidence was

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overwhelming that Turner’s intentional behavior intimidated the flight attendant by
causing her to reasonably fear for the safety of her passengers and herself, thereby
diverting her from performing other duties aboard the aircraft. See Meeker, 527
F.2d at 15; see also United States v. Koshnevis, 979 F.2d 691, 696 (9th Cir. 1992)
(instructional errors related to knowledge are “harmless where the evidence of
knowledge was overwhelming”) (quotation omitted).
3. Turner argues that a limiting instruction should have been given after the
district court granted his Rule 29 motion for judgment of acquittal on the charge
that Turner had intimidated or interfered with the pilot. However, Turner never
requested such an instruction, so we review this issue for plain error. See Perez,
116 F.3d at 845; see also United States v. Lazarenko, 564 F.3d 1026, 1043–44 (9th
Cir. 2009). Due to the strength of the government’s case against him and the
district court’s careful and otherwise appropriate instruction of the jury, the lack of
a limiting instruction was not plain error. See Lazarenko, 564 F.3d at 1043–44.
4. We decline to reach Turner’s ineffective assistance claim because the record
is not sufficiently developed to properly evaluate the issue. See United States v.
McKenna, 327 F.3d 830, 845 (9th Cir. 2003).
AFFIRMED.

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