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United States v. Petras

United States Court of Appeals, Fifth Circuit

January 8, 2018


         Appeals from the United States District Court for the Northern District of Texas

          Before JONES, SMITH, and PRADO, Circuit Judges.


         Jonathan 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 affirm.


         Petras 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.[1] The flight had 117 passengers. After an unscheduled layover in Amarillo, the plane made it to Chicago minus Petras, Shaker, and their companions.

         The 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 seated.

         After 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 quiet."

         Clark 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.

         Several 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.

         One of 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."

         The 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.

         Bergen 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.

         Passenger 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.

         A few 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 plane.


         A grand 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.

         Petras 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 motion.

         During 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.[2] 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 objection.

         After a 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.

         Petras 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 jury findings.


         We use 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.

         Second, 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.

         Third, "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. 2229 (2017).

         Although 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.[3] 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.[4] Thus, the prosecution has offered a race-neutral reason.

         Accordingly, 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 ...

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