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United States v. Turner

United States District Court, D. Hawaii

August 8, 2017



          Susan Oki Mollway United States District Judge

         Defendant William Turner was convicted following a jury trial of having interfered with a flight attendant's performance of her duties. He was acquitted of two counts of assaulting other passengers on his flight. He was sentenced to three years of probation. His sentence included the requirement that he wear an electronic monitor for six months, and he has been wearing the electronic monitor for even less time. He cannot be out of radio frequency range for the electronic monitor without his Probation Officer's advance approval, meaning that he is confined to his home except to go to work or to other events preapproved by his Probation Officer. Turner has been on probation for about two months. He filed a timely appeal from the judgment entered in this case; that appeal is pending.

         Before this court is Turner's “Motion for Bail Pending Appeal Pursuant to California Penal Code § 1272.1.” See ECF No. 75. This court ignores the reference to the California Penal Code because, as Turner's counsel has conceded, Turner was convicted of a federal crime and is subject to federal law. See Turner's Reply, ECF No. 80, PageID # 339 (conceding that the California Penal Code is inapplicable and noting that the reference to the California Penal Code was a “clerical error”).

         The reference to “bail” is confusing, because Turner is on probation. As the Government notes in its written opposition to the motion, “bail” is relevant only when an individual is imprisoned. See ECF No. 77, PageID # 335. This court construes the request for “bail” as a request that Turner's probation conditions be modified by removing the electronic monitor condition. It is in the context of such a modification that this court considers the arguments raised by Turner's motion.[1]

         A. Turner's Request to Remove the Electronic Monitor Condition Is Denied.

         This court denies the request to remove the electronic monitor condition. Removal of the condition is not supported by the record.

         In seeking relief, Turner points out that he is not a flight risk and has so far been compliant with the terms of his probation. The court thinks that being compliant for two out of thirty-six months is simply insufficient to warrant a change. The ink is barely dry on his judgment, and it is highly unusual to modify probation terms based on such a short period. Rarely are conditions modified within the first year (sometimes the first half) of a term, and even then there must be some showing other than mere compliance. Turner does not even suggest that he is somehow being unduly prejudiced by any probation condition.

         Although Turner argues that his short-lived compliance justifies a modification, the heart of his motion is his argument that the jury was wrongly instructed as to the “intimidation” element of the crime he was convicted of. The moving papers characterize this purported error as raising a substantial question on appeal. “Substantial question” is relevant to a motion for release on bail. See 18 U.S.C. § 3145(b)(1)(B) (noting that a defendant who has filed an appeal must be detained unless the judicial officer finds, among other things, “that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in” reversal, a new trial, a sentence not including a term of imprisonment, or a reduced sentence of imprisonment). See also United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985) (concluding that a “substantial question” is one that is “fairly debatable” or “fairly doubtful”). Although this court is considering the present motion as seeking a probation modification rather than bail, the court addresses the jury instruction issue to the extent Turner relies on it even in the modification context.

         The court notes at the outset that this purported error would have to qualify as “plain error” for Turner to prevail on appeal. The definition of “intimidation” was expressly discussed with the attorneys by this court. Turner did not object to any jury instruction on grounds raised in the present motion. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.”); United States v. Olano, 507 U.S. 725, 732 (1993) (noting that “Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings'” (quoting United States v. Young, 470 U.S. 1, 15 (1985))); United States v. Zhou, 838 F.3d 1007, 1010 (9th Cir. 2016) (noting that the “ordinary rule in criminal cases . . . is that ‘plain error' review applies to arguments raised for the first time on appeal”).

         As the court understands Turner's argument, he is saying that the instruction on “intimidation” had two flaws. First, he says that the instruction erroneously defined “intimidation” as not requiring the flight attendant to have feared harm to herself. Turner reads the instruction as wrongly allowing a finding of “intimidation” if the flight attendant simply intervened between two passengers in a dispute. Second, Turner says that it was error for this court to define “intimidation” as including the flight attendant's doing of something she would not ordinarily have done, or failing to do something she would ordinarily have done. In Turner's view, this made “intimidation” mirror “interference, ” even though “intimidation” and “interference” are in separate elements of the crime.

         To put Turner's arguments into context, the court quotes here the instruction given to the jury listing the elements of the crime:

The defendant is charged in Count 1 of the indictment with interference with a flight attendant on or about March 14, 2016, in violation of Section 46504 of Title 49 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, that the defendant was on an aircraft in flight in the special aircraft jurisdiction ...

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