from the United States District Court for the Northern
District of Texas
JONES, SMITH, and PRADO, Circuit Judges.
E. SMITH, CIRCUIT JUDGE.
Petras and Wisam Shaker were convicted of interfering with
the performance of the duties of a flight crew by
intimidation, in violation of 49 U.S.C. § 46504. The
defendants appeal on various grounds. Finding no error, we
and Shaker boarded a flight from San Diego to Chicago. They
are Chaldean Christians who were traveling to Chicago with
ten other individuals to play in a soccer tournament for
Chaldean and Assyrian refugees. The flight had 117 passengers. After an
unscheduled layover in Amarillo, the plane made it to Chicago
minus Petras, Shaker, and their companions.
behavior precipitating this case began before the aircraft
departed the gate. Flight attendant Victoria Clark testified
that Shaker "angr[il]y told her to "move out of the
way" as he was coming down the aisle. Petras and Shaker
then sat in row 20, with their fellow Chaldean soccer players
in rows 20 and 21. As the flight attendants were preparing
for takeoff and giving safety demonstrations, some members of
defendants' group had their tray tables down, seats
reclined, and seatbelts unfastened. Clark had to stop her
demonstration more than once to request that they put up
their seats and tray tables. Shaker was playing loud music
and repeatedly refused Clark's request to turn off the
music or use earbuds. Petras also stood up to use the
overhead bins after the announcement that everyone must be
takeoff, the flight attendants began the in-flight drink
service. Clark made her way down the aisle serving beverages,
but she had a hard time hearing the passengers' drink
orders because, as she testified, the Chaldeans were
"being loud and obnoxious." Once again, she asked
Shaker to turn off his music, but Shaker refused. Petras
intervened, telling Clark, "You can't tell us to be
then began to take drink orders. One man asked about alcohol,
and Shaker demanded some as well by saying, "Bring us
some alcohol." Clark refused, saying she would not serve
them alcohol on the flight. She claimed at trial that she was
afraid alcohol would escalate the situation because the group
was already boisterous and somewhat noncompliant.
members of the group immediately protested Clark's
refusal. Shaker said, "We can have whatever we
want." He started to rise from his seat toward Clark but
got caught in his seatbelt. Petras added, "We can have
whatever the fuck we want, and we'll do whatever to get
what we want." Petras "slammed" his armrest
and tray table up and "lunged" at Clark. Petras was
"most of the way" from his seat, and his face
"was even" with Clark's. Clark was afraid of
being hurt and hurried away to find flight attendant Jamie
Bergen in the front of the cabin.
the group then hit the call button. Flight attendant Leslie
Rouch unwittingly came from the back of the aircraft to
answer their call. Petras asked her why Clark was refusing
them alcohol. Rouch responded that she did not know and would
talk to Clark, but she would not serve them alcohol either.
The men immediately protested. Shaker said, "You
can't tell us no . . . This is America . . . You
can't do that" and rose out of his seat, pointing at
her. Rouch told them to "tone it down," but Petras
responded that she was a "racist." Feeling
"stunned," Rouch walked away and heard Petras again
call her a "racist pig" as she left. His tone was
"hostile and hateful."
pilot was alerted to the situation when she stepped out of
the cockpit to use the restroom. She saw that Clark
"looked scared," and after briefly discussing the
situation with Clark, she declared a Level 1 Threat, meaning
that the plane had passengers who were being verbally
assaultive. The pilot secured the cockpit and began talking
about possibly diverting the plane.
then decided to try her hand at diffusing the situation. She
approached the group and asked them what was going on. But
they loudly and aggressively told her that the flight
attendants could not deny them and were racist. She thus
decided to return to her fellow attendants.
Tiffany Darge came to the back galley and confirmed that a
member of the group called Rouch a "racist pig."
Bergen approached the group again and informed them that a
passenger had confirmed that they had used inappropriate
language. Shaker again rose out of his seat, saying,
"Who was saying that; I want to talk to them . . . . You
can't talk to me this way. I'm a United States
fucking citizen. You won't disrespect me. Not even my mom
disrespects me." Bergen described Shaker as
"lung[ing] towards" her and unable to get out of
his seat because of his seatbelt; she was "worried about
him trying to get a hold of [her]." Again, Bergen
returned to the front of the aircraft; at this point, the
crew began looking for cities to which divert the flight.
minutes later, passenger Darge came to the front of the
aircraft. She claimed that some of the group had been
"threatening" her, "flipping her off,"
and calling her "fucking ugly." After being
informed of this, the pilots made the final decision to
divert. The crew did not approach the group again. Bergen
asked Clark to stay in the front of the plane "for her
own safety," while Bergen "was shaking" and
crying during landing. About 45 minutes later, the plane
touched down in Amarillo. Police escorted the men from the
jury charged four men from the group, including Petras and
Shaker, with interfering with a flight crew and aiding and
abetting, in violation of 49 U.S.C. § 46504 and 18
U.S.C. § 2. Section 46504 provides that any
"individual on an aircraft . . . who, by assaulting or
intimidating a flight crew member or flight attendant of the
aircraft, interferes with the performance of the duties of
the [crew]" is criminally liable. The prosecution's
theory was that Petras and Shaker, along with their
co-defendants, intimidated the crew by using profane,
aggressive language and menacing conduct that made the
attendants fearful for their safety.
and Shaker moved to dismiss the indictment, alleging that it
failed to state an offense, was unconstitutionally vague and
overbroad, and violated the First Amendment. The district
court denied the motions, relying on United States v.
Hicks, 980 F.2d 963 (5th Cir. 1992), which interpreted
49 U.S.C. § 1472(j)-the predecessor to § 46504-and
found it constitutional. The government moved in limine to
prevent the defense from mentioning the defendants'
religious affiliations at trial, fearing the defendants would
use their affiliation as part of a group of Christian
refugees to generate sympathy; the district court denied that
voir dire, the prosecution used two preemptory strikes on the
only two black veniremen-Jurors 26 and 28. Petras's
attorney raised a Batson objection. The government replied that Juror 26 had a
piercing in her eye and had never flown before and that Juror
28 had flown only once and discriminates based on religion.
The defense replied that those reasons were pretextual and
pointed to other purportedly comparable jurors who were not
struck. The district court overruled the Batson
six-day trial, the jury convicted Petras and Shaker while
acquitting their two co-defendants. Petras was sentenced to
seven months' imprisonment and three years'
supervised release, Shaker to five months' imprisonment
and three years' supervised release. Both were ordered to
pay restitution of $6,890 to the airline.
and Shaker appealed. They claimed (1) the district court
erred in overruling their Batson objection to the
prosecution's strikes, (2) the jury instructions were
incorrect in defining "intimidation" and providing
the mens rea, (3) section 46504 is unconstitutional as
violating the First Amendment and Due Process Clause, (4) the
evidence was insufficient for Shaker's conviction, and
(5) the district court could not award restitution without
a three-step process to evaluate a claim that a prosecutor
used preemptory strikes in a racially discriminatory manner.
See United States v. Thompson, 735 F.3d 291, 296
(5th Cir. 2013). First, the challenger must make a prima
facie showing of discriminatory jury selection. See
Hernandez v. New York, 500 U.S. 352, 358 (1991). Because
the district court ruled on the ultimate question of
discrimination, this first step is moot on appeal.
Id. at 359.
the burden shifts to the party accused of discrimination to
provide a race-neutral explanation for the strikes.
Id. at 358–59. The explanation "need not
be persuasive, nor even plausible, but only race-neutral and
honest." United States v. Williams, 264 F.3d
561, 571 (5th Cir. 2001). On appeal, the strike must
"stand or fall" on the explanation provided at the
time of the ruling. Miller-El v. Dretke
("Miller-El II"), 545 U.S. 231, 252
(2005). Appellate review of the race-neutral reason is de
novo. Thompson, 735 F.3d at 296.
"the trial court must determine whether the [challenging
party] has carried his burden of proving purposeful
discrimination." Hernandez, 500 U.S. at 359.
"This is quintessentially a question of fact which turns
heavily on demeanor and other issues not discernable from a
cold record." Williams, 264 F.3d at 572.
Accordingly, "deference to the trial court is highly
warranted," and appellate review is for clear error.
Id.; see also United States v. Thomas, 847
F.3d 193, 209 (5th Cir.), cert. denied, 137 S.Ct.
the defendants allege that the prosecution committed a
Batson violation by striking Jurors 26 and 28-the
only two eligible black jurors―the prosecution offered
a race-neutral reason. Its proffered justifications were that
Juror 26 had a piercing in her eye and had never flown before
and that Juror 28 had only flown once in his life and
discriminated against Muslims. These explanations are not, on their face,
racially tinged. See Thompson, 735 F.3d at 297.
Indeed, we have consistently held that features such as
facial piercings can serve as legitimate, race-neutral
reasons to strike. Thus, the
prosecution has offered a race-neutral reason.
we move to the third step, where the defendants have the
burden of proving that the prosecution engaged in purposeful
discrimination. Hernandez, 500 U.S. at 359.
Defendants contend that statistics and side-by-side
comparisons of white panelists demonstrate purposeful
discrimination. The prosecution responds that it was always
concerned about anti-Muslim or pro-Christian bias (given that
defendants belonged to a group of Christian refugees from the
Middle East) and that the side-by-side comparisons are
unhelpful because the defendants point to jurors ...