A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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UNITED STATES OF AMERICA v. GERARD SASSO, Appellant, No. 11-1094 (September 17, 2012) was an appeal from the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. The Government had charged the Appellant Gerard Sasso with one count of interfering with the operation of an aircraft with reckless disregard for human life sur 18 U.S.C. §§ 32(a)(5). A jury found the defendant guilty as charged. The defendant was sentenced to serve three years in prison.

The Appellant was convicted of having willfully interfered with the operation of a state law enforcement helicopter by aiming a laser at the cockpit from his bedroom window. The defendant admitted that he had “noticed the helicopter and decided to light it up” and, notwithstanding the helicopter’s zigzag flight path, the laser struck it repeatedly. Section 32(a)(5) makes it a crime to willfully . . . interfere with or disable, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of an aircraft or any air navigation facility aiding in the navigation of any such aircraft . . . .

With respect to the charge brought under this section, the trial court instructed the jury as follows:

Count 1 charges the defendant with a violation of a federal statute that makes it a crime for anyone acting with a reckless disregard for the safety of others to willfully interfere with persons operating an aircraft in the special aircraft jurisdiction of the United States. In order for the defendant to be found guilty on Count 1, the government must prove each of the following elements beyond a reasonable doubt.

First, the government must prove that the defendant willfully interfered with a person engaged in the authorized operation of an aircraft. To act “willfully” in this context means to act deliberately and intentionally, on purpose, as opposed to accidentally, carelessly or unintentionally. If a person’s actions interfere with an aircraft operator, you may infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.

Second, the government must prove that the defendant acted with a reckless disregard for the safety of human life. A defendant acts with a reckless disregard for the safety of human life if he is aware that his actions create a substantial and unjustifiable risk to the safety of human life and he consciously disregards that risk.

The Court of Appeals held that this instruction erroneously diluted the mens rea requirement of section 32(a)(5) by inviting the jury to “infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.” Reasonable jurors might have understood from this instruction that it would be enough to convict the defendant if they found that he deliberately pointed a laser in the helicopter’s direction and interference occurred as a natural and probable consequence of that action, regardless of whether the defendant knew that interference was a natural and probable effect of the action. Thus the instruction did not adequately distinguish between negligently (but innocently) pointing a laser at objects in the sky without any intent to interfere with the operation of an aircraft and “willfully . . . interfering,” which is the level of scienter demanded by the plain text of the statute.

This error was not harmless. The proof of scienter was less than compelling. Scienter was a hotly contested and fairly debatable issue. Viewing the record as a whole, there was too great a likelihood that the instructional error may have influenced the verdict. Therefore, the Court vacated the conviction on the section 32(a)(5) count and remanded for a new trial.

UNITED STATES OF AMERICA v. GERARD SASSO, Appellant, No. 11-1094 (September 17, 2012) was an appeal from the UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. The Government had charged the Appellant Gerard Sasso with one count of interfering with the operation of an aircraft with reckless disregard for human life sur 18 U.S.C. §§ 32(a)(5). A jury found the defendant guilty as charged. The defendant was sentenced to serve three years in prison.

The Appellant was convicted of having willfully interfered with the operation of a state law enforcement helicopter by aiming a laser at the cockpit from his bedroom window. The defendant admitted that he had “noticed the helicopter and decided to light it up” and, notwithstanding the helicopter’s zigzag flight path, the laser struck it repeatedly. Section 32(a)(5) makes it a crime to willfully . . . interfere with or disable, with intent to endanger the safety of any person or with a reckless disregard for the safety of human life, anyone engaged in the authorized operation of an aircraft or any air navigation facility aiding in the navigation of any such aircraft . . . .

With respect to the charge brought under this section, the trial court instructed the jury as follows:

Count 1 charges the defendant with a violation of a federal statute that makes it a crime for anyone acting with a reckless disregard for the safety of others to willfully interfere with persons operating an aircraft in the special aircraft jurisdiction of the United States. In order for the defendant to be found guilty on Count 1, the government must prove each of the following elements beyond a reasonable doubt.

First, the government must prove that the defendant willfully interfered with a person engaged in the authorized operation of an aircraft. To act “willfully” in this context means to act deliberately and intentionally, on purpose, as opposed to accidentally, carelessly or unintentionally. If a person’s actions interfere with an aircraft operator, you may infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.

Second, the government must prove that the defendant acted with a reckless disregard for the safety of human life. A defendant acts with a reckless disregard for the safety of human life if he is aware that his actions create a substantial and unjustifiable risk to the safety of human life and he consciously disregards that risk.

The Court of Appeals held that this instruction erroneously diluted the mens rea requirement of section 32(a)(5) by inviting the jury to “infer that the person acted willfully if his actions were deliberate and intentional and had the natural and probable effect of interfering with the aircraft operator.” Reasonable jurors might have understood from this instruction that it would be enough to convict the defendant if they found that he deliberately pointed a laser in the helicopter’s direction and interference occurred as a natural and probable consequence of that action, regardless of whether the defendant knew that interference was a natural and probable effect of the action. Thus the instruction did not adequately distinguish between negligently (but innocently) pointing a laser at objects in the sky without any intent to interfere with the operation of an aircraft and “willfully . . . interfering,” which is the level of scienter demanded by the plain text of the statute.

This error was not harmless. The proof of scienter was less than compelling. Scienter was a hotly contested and fairly debatable issue. Viewing the record as a whole, there was too great a likelihood that the instructional error may have influenced the verdict. Therefore, the Court vacated the conviction on the section 32(a)(5) count and remanded for a new trial.

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