Metropolitan News-Enterprise


Monday, March 29, 2004


Page 1


Ninth Circuit Upholds Conviction of Iranian for Threat Made After He Was Caught Smoking on Airplane


By DAVID WATSON, Staff Writer


An Iranian citizen and Woodland Hills resident was properly convicted of intimidating airline flight attendants and sentenced to nearly three years in prison, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Javid Naghani allegedly threatened to “kill all Americans” after he was caught smoking in the restroom on an Air Canada flight shortly after it took off from Los Angeles International Airport and headed for Toronto less than three weeks after the attack on the World Trade Center. At trial he claimed he only shouted “I am the president of Cleaning of America”—the name of the janitorial service he operated.

He contended the crew members must have misunderstood him and argued that the confrontation escalated as it did only because of his ethnic background.

He also claimed not to know that smoking was banned in aircraft lavatories.

Prosecutors presented evidence that Naghani, who was traveling with his wife, had been drinking before the flight began and initially refused to admit he was smoking or say what had become of the lighted materials.

The Ninth Circuit panel rejected Naghani’s claim jurors might have convicted him without being convinced he made the threat to kill Americans. The prosecutor’s closing argument improperly urged jurors to find that a violation of 49 U.S.C. Sec. 46504, which criminalizes interfering with the duties of flight attendants by “intimidating” them, could consist solely of smoking in the restroom and then threatening to sue the airline and its employees, Naghani contended.

The statute would be unconstitutionally vague if construed to prohibit such conduct, he argued.

But Judge Raymond C. Fisher said the closing argument did not go as far as Naghani claimed—though he conceded that at some points Assistant U.S. Attorney Elizabeth Yang came “perilously close” to crossing that line.

“Read fairly and in context,” Fisher declared, “we think it is clear that the government was tying all of Naghani’s actions together as an escalating course of events—which began by his creating an unexplained source of smoke and resultant alarm (the missing lit cigarette) and culminated in his overt threat of bodily harm (‘kill all Americans’), combined with his aggressive, confrontational, uncooperative behavior throughout. Indeed, the government throughout its argument referred the jury to Naghani’s ‘entire course of conduct,’ ‘whole course of conduct’ and ‘whole range of conduct.’”

Since the jurors were not asked to convict Naghani without finding he threatened to “kill all Americans,” it was not necessary for the court to decide whether the statute would be unconstitutionally vague if it permitted a conviction based solely on smoking in a lavatory or making threats to sue when apprehended, Fisher explained. He said, however, it was “unlikely that the simple act of sneaking a smoke in the lavatory or threatening to file a lawsuit could satisfy the meaning of intimidation under [Sec.] 46504.”

Fisher also rejected Naghani’s argument that the government’s evidence against him was insufficient. The defendant contended that while prosecutors alleged the threatening remark was directed to in-charge flight attendant Roman Dubejsky, they claimed flight attendants Natasha Kecskemeti and Natalie Frechette were the crew members with the performance of whose duties he had interfered.

“This argument incorrectly presumes that Naghani could not have intimidated Frechette and Kecskemeti, who testified that they overheard the threat,” Fisher commented. He noted that in United States v. Meeker, 527 F.2d 12 (1975), the Ninth Circuit construed the predecessor statute to Sec. 46504 not to require a “one-on-one” confrontation, but instead to encompass a situation in which actions directed at one individual may intimidate others.

Fisher observed:

“The two flight attendants testified that they clearly heard Naghani threaten to ‘kill all Americans.’ [A] rational trier of fact could conclude that this threat would place an ordinary reasonable person in fear—.Indeed, evidence was presented that the flight attendants actually were afraid as a result of Naghani’s threatening words and conduct.”

The appellate jurist said U.S. District Judge Ronald S.W. Lew did not, at Naghani’s December 2001 trial, err in declining to instruct jurors on the lesser offense of smoking on an aircraft. Since smoking is not an element which prosecutors must prove to establish a violation of Sec. 46504, the smoking offense is not included within it, Fisher said.

Though prosecutors in fact proved Naghani was smoking, that was irrelevant, Fisher explained, since under Ninth Circuit precedent an instruction on a lesser offense is not required where it includes an element not required to convict of the greater offense, even if that element is proven to support the more serious charge.

Lew also acted properly in enhancing Naghani’s sentence based on a finding that the defendant “recklessly endangered” the aircraft crew’s safety, Fisher said.

“Naghani should have been aware that his behavior would divert the flight attendants’ attention from their duties and require their presence,” the appeals court judge said. “If an actual emergency had arisen at another part of the plane, the distraction would have delayed, and perhaps prevented, an effective response by the flight attendants.”

District Judge Morrison C. England Jr. of the Eastern District of California, sitting by designation, and Judge Robert R. Beezer concurred.

Yang represented the government on appeal, while Glendale attorney Gail Ivens represented Naghani. Neither returned calls for comment Friday.

A spokesman for the U.S. Attorney’s Office in Los Angeles said Naghani has completed his sentence and was released from prison March 11.

The case is United States v. Naghani, 02-50168.


Copyright 2004, Metropolitan News Company