Argued and Submitted, San Francisco, California June 8, 2015.
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:13-cr-00109-LJO-SKO-1. Lawrence J. O'Neill, District Judge, Presiding.
The panel reversed a conviction for attempting to interfere with the safe operation of an aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8), and remanded for resentencing on a conviction for aiming a laser pointer at an aircraft, in violation of 18 U.S.C. § 39A.
The panel held that there is insufficient evidence to support the conviction under § 32(a)(5) and (8), which required proof of both a willful attempt to interfere with an aircraft and a reckless disregard for human life, where the evidence showed that the defendant was attempting to see how far his laser would go at night and aimed it at a helicopter, but there is no evidence that he was trying to interfere with the pilot.
The panel remanded for resentencing on the § 39A conviction because the district court did not have the benefit of this court's decision in United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015), and premised the sentence for the § 39A conviction, in part, on the fact that the defendant had also been convicted of violating § 32(a)(5), (a)(8).
Carolyn D. Phillips (argued), Fresno, California, for Defendant-Appellant.
Benjamin B. Wagner, United States Attorney, Camil A. Skipper, Appellate Chief, Karen A. Escobar and Michael G. Tierney (argued), Assistant United States Attorneys, Fresno, California, for Plaintiff-Appellee.
Before: Barry G. Silverman, Ronald M. Gould, and Andrew D. Hurwitz, Circuit Judges. Opinion by Judge Silverman.
SILVERMAN, Circuit Judge:
There ought to be a law against shining a laser pointer at an aircraft. In fact, there is, and it's punishable by up to five years in prison, as appellant Sergio Rodriguez discovered for himself. Rodriguez, his girlfriend, and their kids were fooling around with a laser pointer one summer evening in the courtyard of their apartment complex -- trying to see just how far it could go -- and they shined it at overflying helicopters. Rodriguez was convicted of Aiming a Laser Pointer at an Aircraft, in violation of 18 U.S.C. § 39A, and was sentenced to the maximum sentence: five years in prison. Rodriguez does not challenge that conviction.
He also was convicted of another crime stemming from the same conduct -- Attempting to Interfere with the Safe Operation of an Aircraft, in violation of 18 U.S.C. § 32(a)(5) and (8). That crime requires proof of a willful attempt to interfere with the operator of an aircraft, with either the intent to endanger others or reckless disregard for human life. Rodriguez was charged with and found guilty of the reckless variety, and for that offense, was sentenced to fourteen years in prison.
The evidence clearly shows that Rodriguez was rightfully convicted of aiming the laser pointer at a helicopter (§ 39A). However, there is insufficient evidence that he willfully attempted to interfere with the safe flight of the helicopter (§ 32(a)(5)). Rather, the evidence showed that he was attempting to see how far his laser would go at night -- a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot. Section 39A is designed for knuckleheads like him. On the other hand, 18 U.S.C. § 32(a)(5) is designed for both the Osama bin Ladens of the world -- people trying to bring down a plane, intending to cause harm -- and those who are aware that their actions are dangerous and could harm others, but just don't care. The failure to recognize this distinction is to fail to appreciate that Congress saw fit to create two different crimes, one more serious than the other, for two different types of offenders.
About a year after Rodriguez's conviction became final in district court, we decided United States v. Gardenhire, 784 F.3d 1277 (9th Cir. 2015). On very similar facts -- a case in which another knucklehead aimed a laser pointer at a passing airplane just for the fun of it -- we held, for the purposes of the applicable sentencing guidelines, that there was no evidence " that Gardenhire acted recklessly when he aimed his laser beam at the aircraft. The record is devoid of evidence, let alone clear and convincing evidence, that Gardenhire was aware of the risk created by his conduct." Id. at 1280.
We face a similar situation here. There's no problem with Rodriguez's conviction for Aiming a Laser Pointer at an Aircraft, 18 U.S.C. § 39A. But his conviction under 18 U.S.C. § 32(a)(5), (a)(8), for Attempting to Interfere with the Safe Operation of an Aircraft, required both proof of a willful attempt to interfere with an aircraft, and proof of a reckless disregard
for human life. That conviction is not supported by the evidence and must be reversed. Because the district court did not have the benefit of Gardenhire and because it premised the sentence for the § 39A conviction, in part, on the fact that Rodriguez had also been convicted of violating § 32(a)(5), (a)(8), we also remand for resentencing on the § 39A conviction.
On August 25, 2012, at around 9:00 p.m., Air George -- a medical transport helicopter for the Valley Children's Hospital in Fresno, California -- had just set out to pick up a patient in Porterville. The helicopter was about 1,100 feet up, flying at a speed of around 130 miles per hour. Five minutes into the flight, the pilot noticed a " bright green flash inside the cabin" that caused " everything in the cabin [to] light up." A few seconds later, he saw the flash again, this time for a slightly longer period of about two seconds. The flash caused a glare inside the cabin that made it " difficult to see outside." The pilot realized it was a laser. He located the spot from which it was being shined at him in what appeared to be a zig zag motion, reported the laser to air traffic control, and continued on to Porterville.
Fresno Police Department pilot Kenneth Schneider and Tactical Flight Officer George Valdez were on duty that night in the department's helicopter, Air-1, and responded to air traffic control's call. The pair began orbiting the area in which Air George's pilot saw the laser, flying approximately 60 miles per hour at an altitude of 500 feet. During one of the orbits, a green laser hit the cockpit, creating a " big flare" and " light[ing] up the entire cockpit." Schneider and Valdez continued orbiting in order to locate the laser. During that time, the cockpit ...