Sex, Drugs, and the Patriot Act:
Well, no drugs, actually, but this one does combine sex and the Patriot Act. [BUT SEE UPDATE, which exlains that it really is just about sex.] AFP is reporting, via Drudge:
However, nothing in the story suggests that Persing actually threatened to interfere with, disable, or incapacitate the flight attendant while he was doing his job with intent to endanger his safety. It sounds like Persing was actually quite occupied with other things. And it's unclear what role Sewell had here, at least in a criminal sense.
If any one has a copy of the indictment, send it on.
UPDATE: The indictment is here. As Armen suggests, the AFP story is wrong: the charges aren't being brought under the Patriot Act but rather under 49 U.S.C.A. § 46504:
A couple's ill-concealed sexual play aboard a Southwest Airlines flight from Los Angeles got them charged with violating the Patriot Act, intended for terrorist acts, and could land them in jail for 20 years.This story doesn't seem to add up. The relevant provision of the Patriot Act is 18 U.S.C. 1993(a)(5), which punishes whoever:
According to their indictment, Carl Persing and Dawn Sewell were allegedly snuggling and kissing inappropriately, "making other passengers uncomfortable," when a flight attendant asked them to stop. . . .
On a second warning from the flight attendant, Persing snapped back threatening the flight attendant with "serious consequences" if he did not leave them alone.
The comment was enough to have the couple, both in their early 40s, arrested when the plane reached its destination in Raleigh, North Carolina, and charged with obstructing a flight attendant and with criminal association.
interferes with, disables, or incapacitates any dispatcher, driver, captain, or person while they are employed in dispatching, operating, or maintaining a mass transportation vehicle or ferry, with intent to endanger the safety of any passenger or employee of the mass transportation provider, or with a reckless disregard for the safety of human life.In addition, 18 U.S.C. 1993(a)(8) prohibits "threaten[ing]" to do an act in (a)(5).
However, nothing in the story suggests that Persing actually threatened to interfere with, disable, or incapacitate the flight attendant while he was doing his job with intent to endanger his safety. It sounds like Persing was actually quite occupied with other things. And it's unclear what role Sewell had here, at least in a criminal sense.
If any one has a copy of the indictment, send it on.
UPDATE: The indictment is here. As Armen suggests, the AFP story is wrong: the charges aren't being brought under the Patriot Act but rather under 49 U.S.C.A. § 46504:
An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both.The Patriot Act did amend this statute: Secton 811(i) of the Patriot Act added the phrase "or attempts or conspires to do such an act." However, the substantive offense that was charged dates back to the 1960s.
I thought it was 1993 originally as well, but apparently it is 46504, which had the words "or attempts or conspires to do such an act" added to it by the Patriot Act.
"Obstructing a flight attendant?"
Since when did these sky waitresses become so darn important?
[OK Comments: Note, Kevin, that it turns out that the report of a Patriot Act connection are false.]
I have worked on at least one average drug case, involving marijuana no less, that was "worked up" using the Patriot Act. The defendant was not a terrorist (he was Asian but not even in a street gang). However, he did have the unfortunate luck of having a name that was similar to a name on the do not fly list. And he rented a UHAUL storage locker. Which was apparantly suspicious enough to call in the bomb squad to make a warrantless entry into the locker and discover the "weapons of mass destruction" - a few dufflebags filled with high quality marijuana. The prosecutors even attempted to use dept of homeland security bulletins regarding the use of storage facilities to hide fertilizer bombs in Britain as a means to create exigent circumstances. Luckily, the judge wasn't buying it because there was absolutely no conceivable connection between the defendant and terrorism and we won the case on a motion to suppress. But we were lucky on our selection of judge, the same case on the same facts in a multitude of different courtrooms in the same building would have resulted in the opposite result. I am sure other practitioners are aware of similar stories and situations. The anti-patriot act is really starting to show its true colors and they are not red, white and blue.
[OK Comments: Kevin, what does this have to do with the Patriot Act? The police violated the Fourth Amendment, and the evidence was suppressed. What exactly was the Patriot Act's role?]
In German
"Kissing, hugging, petting. During flights in the USA it is better to avoid it. A couple who didn't want to be prohibited from showing lots of affection for each other are now facing up to 20 years in prison - for conspiracy."
So they made other passengers uncomfortable, can't have that. I wonder if I could have claimed the same about the 350-pound guy in the middle seat. But I guess that didn't involve anything sexual.
First, on plain reading it seems clear it was the flight attendent attempting to "obstruct" the goals of these customers.
Second, "criminal" association?? Snuggling?? Are you sure it wasn't smuggling?
:-)
In the Spiegel article it says he took a dive in Sewell's lap, but his attorney claims he was not feeling well and put his head on her lap to recompose himself. (lol) Of course, the problem with 49 U.S.C.A. § 46504 is that the original problem is no longer at issue. The only issue is whether Persing was mean to the stewardess or steward. So, his state of mind (horny or tired) means little.
Upshot: Be nice to the lady in the Southwest Airlines Uniform -- she can drop you in a concrete cell for 20 years if you give her lip. I have long since stopped saying "Hey, honey, get me a beer and some nuts, will ya'." I respect their authority. Yessum.
Hot Stock Tip Of The Day: Invest in the prison industry.
If we're gonna give only 1% of all the jerks a little hard time, there will be a prison boom for sure.
how subjective is this standard? if the manner in which i request service or respond to FA requests is perceived as intimidating by the FA and thus in diminution of FA's ability to perform duties, do I violate the act?
USSG 2A5.2(a)(4) sets a base offense level of 9 (it's a BIG stretch to argue that he intentionally or recklessly endangered the safety of an airplane, which would result in a much higher offense level under (a)(1) or (a)(2)). If he pleads guilty, he should get a two level reduction for acceptance of responsibility. So, assuming he has no prior convictions, the advisory sentencing range is 0-6 months (and since that's in Zone A, probation is pretty likely).
When the flight attendant tells you to be "calm down", then it's time to stop arguing about whatever you were arguing about, sit down, and shut up for the rest of the flight. You can then complain all you want to her superiors after you get out of the little aluminum tube 35,000 feet in the air.
In philosophical discussions, it may seem a bit arbitrary, but in reality, it almost never is. Nobody's getting arrested and locked up just for calling the flight attendant "honey" (not that I recommend doing so). The bottom line is, in those small confines, they're the boss. You do what they say, and if you think they're wrong, you don't argue with them, you take it up on the ground afterward.
A more closer analogy would be if I were minding my own business, but the other passengers were horribly offended that I was wearing a striped tie on my Hawaiian shirt, and the flight attendant kept coming around to tell me to remove my tie because it was offending other passengers, and I told her to leave me alone, else I would call my travel agent when I got back.
I doubt they'd bother with it unless the flight attendant misheard "me peanuts" and heard something else somewhat similar instead that would make the statement a bit more threatening.
The cause of this is largely an attitude problem in the DOJ. FEDERAL prosecutors are too good to handle mere misdemeanors even if that's what is appropriate.
Are there any misdemeanors in Title 18?
Sounds like temporary insanity to me. "She drives me CRAZY, guys!"
Are there any misdemeanors in Title 18?
1. Had some exposure to that, During my time with Interior, Fish and Wildlife Service was trying to make some federal wildlife law violations felonies. I asked why -- I doubt anyone charged with them has ever gotten a year in jail or anything close, so why do we need to increase the punishment?
The reply was just as you said ... US attorneys won't take our misdemeanor cases, so we've got to get felony status just so they'll accept them.
2. There *are* a few misdemeanors in Title 18. I can recall impersonating Smokey the Bear or Woodsie the Owl (I'm serious). There's also a misdemeanor for paperwork error by a gun dealer (but Congress botched it, so the agency can still bring felony charges for this under 18 USC 1001). 'course, you could always just ask something if they had impersonated Woodsie the Owl, and if they falsely deny it, charge them with an 18 USC 1001 felony anyway.
I'd go a step further though. Something like this should (at most) have a civil cause of action that the airline could pursue.
asst. us attorney's _do_ have better things to do with their time than handling misdeameanors.
Really? I would think that if the legislative branch felt it was worth making a law, the executive branch should consider enforcing it. Even if it's just a "misdemeanor".
"by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties . . ."
I don't think threatening to write a letter to her boss after the flight or calling up your travel agent qualifies. (Common law assault requires an immediate threat -- not I will do something to you next week. Intimidation probably means the same thing.)
And yet that would be "serious consequences", which is all Persing is alleged to have threatened.
OK, I think his point was that the Patriot Act provided a pretense for the search which was otherwise not available and might very well have worked with another judge. Therefore, the Act 'enabled' an illegal search which might not otherwise have happened.
If we're gonna give only 1% of all the jerks a little hard time, there will be a prison boom for sure."
I'm thinking about designing a robot prison guard. Many prisons are already short staffed. Who'd have thought that the number of people willing to work locked in with criminals for low pay was so limited?
I've wondered if, with the increasing number of people locked up for nonviolent offenses (including at the local level, people held overnight before initial appearance, for DUI, etc.), If the weather is decent, park them on cots in a tent city, a few guards around, and tell em to stick around and be orderly or there will be worse legal trouble -- good night. Might not even need a fence -- the overnight folks aren't going to risk felony escape charges to try to evade a charge that brings a fine or at worse 24 hours in the clink.
I wonder how hard the Flight Attendant union had to fight to get this "eggshell skull" provision drafted. Don't EVER take a flight when your ex-spouse is crew.
Also, somebody needs to teach the FBI that a "lap" isn't a dirty word.
Unless you are willing to argue that telling someone "I'll stab you in the heart" isn't assault, you are depending on a trier of fact to determine when the line is crossed from complaining to criminal behavior.
They have witnesses who overheard flight attendants discussing how they would bring charges to prevent repercussions from the customer's complaint.
It made quite a bit of news. Apparently, any form of PDA is grounds for disciplinary action on US airliners.
What's wrong with these flight attendants? They don't have enough to do, but they have to act like a schoolmarm now?