United States v. Auburn Calloway

Citations: 116 F.3d 1129; 1997 WL 335262Docket: 95-6206

Court: Court of Appeals for the Sixth Circuit; July 25, 1997; Federal Appellate Court

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Auburn Calloway was convicted on federal charges of attempted aircraft piracy and interference with flight crew members, receiving concurrent life sentences. He raised six issues on appeal: 1) the district court's refusal to suppress evidence; 2) insufficiency of evidence for attempted aircraft piracy; 3) jury instructions that allegedly amended the indictment; 4) improper jury instructions regarding wrongful intent; 5) the conviction for interference with flight crew members as a lesser-included offense of attempted aircraft piracy; and 6) an upward departure in sentencing guidelines. The government conceded that the interference conviction was indeed a lesser-included offense, leading to its vacatur. However, the court found no reversible errors in the remaining matters and affirmed the life sentence for attempted aircraft piracy.

Calloway, a flight engineer for Federal Express, was under investigation for irregularities in his flight hours and was scheduled for a hearing. Prior to this, he rearranged his financial affairs, transferring significant assets to his ex-wife and changing insurance beneficiaries. On April 7, 1994, he entered the cockpit of FedEx Flight 705, dressed in flight gear, and initiated an attack on the crew with a hammer. After arming himself with a spear gun, he continued his assault until the crew managed to declare an emergency and land the aircraft safely. Calloway was subdued by a paramedic, and upon investigation, multiple weapons and a note expressing despair were found on board.

Flight 705 crew members sustained severe injuries during an attack, with co-pilot Tucker suffering skull fractures and partial blindness, pilot Sanders enduring deep head gashes and a dislocated jaw, and flight engineer Peterson experiencing a fractured skull and severed temporal artery. Douglas Kinzie, a FedEx employee living with the attacker, Mr. Calloway, alerted the FBI after finding a note in their apartment listing the crew's names. The FBI obtained a warrant to search Calloway's apartment, which led to the seizure of evidence including a note about the crew, a list of weapons, and documents related to insurance beneficiary changes. 

On May 17, 1994, a federal grand jury indicted Calloway for attempted aircraft piracy and interference with flight crew members. Calloway's motion to suppress the seized evidence was denied, and at sentencing, the court applied a higher offense level resulting in a sentence range of life imprisonment, despite Calloway lacking a significant criminal history. On appeal, Calloway contested the denial of his suppression motion, but the court upheld the magistrate's finding of probable cause, emphasizing that such determinations receive great deference and are evaluated based on the totality of circumstances. The evidence, including the note from his roommate and changes to insurance policies, supported the magistrate's decision.

The warrant allowed for the seizure of specific documents related to Federal Express Flight 705, including crew member names and insurance beneficiary records. However, additional documents not specified in the warrant—such as a note on weapons, two bank receipts, Mr. Calloway's will, and a power of attorney—were also seized. Mr. Calloway contends that their seizure exceeded the warrant's scope. The court found the seizure justified under the plain view doctrine, which requires that evidence is in plain view, immediately incriminating, observed by an officer legally present, and seized by an officer with lawful access. The agents executing a valid search warrant were permitted to examine documents they encountered. The incriminating nature of the seized items was deemed "immediately apparent," with the standard not requiring a high degree of certainty. Factors considered included the connection between the seized objects and the warrant items, the inherent nature of the objects suggesting criminal activity, and the executing officer's immediate perceptions. The court concluded that the documents, particularly the note on weapons and the financial documents related to recent beneficiary changes, were justifiably seized. Furthermore, any potential error in admitting this evidence was considered harmless. Mr. Calloway also argued that the evidence was insufficient for a conviction of attempted aircraft piracy, but the conviction was upheld, as the evidence viewed favorably for the prosecution could lead a reasonable jury to find the elements of the crime beyond a reasonable doubt.

Aircraft piracy consists of four elements: 1) seizure or control of an aircraft; 2) use of force, violence, intimidation, or threats; 3) wrongful intent; and 4) occurrence within U.S. special aircraft jurisdiction. Mr. Calloway contests the element of control, asserting no evidence was presented that he attempted to gain control. However, the court finds this argument unconvincing, noting that whether he intended to crash the plane or leave it uncontrolled, he would still exert dominion over it, especially with the crew incapacitated.

Calloway claims the district court erred in two jury instruction aspects: 1) the court allegedly amended the indictment by permitting conviction based on intimidation, which was not specifically charged; and 2) the court failed to provide an instruction on specific intent, a critical component of attempted aircraft piracy. Since these issues were not raised during the trial, the court may only reverse the conviction for plain error affecting substantial rights.

The district court's jury instruction clarified that for a conviction of attempted aircraft piracy, the prosecution needed to prove four elements beyond a reasonable doubt, including the use of force, violence, or intimidation. The indictment's language indicated that "by force and violence" and "threat of force and violence" were alternative means of committing the offense, and proving just one was sufficient. Calloway's argument regarding the inclusion of "any other form of intimidation" as a constructive amendment to the indictment is rejected, as the court finds no evidence of such an amendment affecting the jury's decision.

The district court referenced "any other form of intimidation" while quoting the statute and later instructed the jury that the government needed to prove beyond a reasonable doubt that Mr. Calloway used force, violence, or threats of force and violence for a conviction, without committing plain error. The court noted that a misstatement in one part of the jury instruction does not necessitate reversal if the correct information is communicated clearly elsewhere. Mr. Calloway argued that the jury was not instructed on the specific intent required for attempted aircraft piracy. Specific intent means that the defendant consciously aims to complete the acts that constitute the offense, as opposed to merely knowing their actions may lead to a prohibited result. The district court's instruction defined "wrongful intent" as general criminal intent, requiring the jury to find that the defendant acted knowingly and intentionally. For analysis, it is assumed this instruction did not require a finding of specific intent. Other circuits, specifically the Ninth and Eleventh, have ruled that the "wrongful intent" necessary for aircraft piracy is only general intent, applicable to both inchoate and choate offenses. This issue remains unresolved in the current circuit, though generally, attempt crimes are expected to show specific intent to commit the substantive offense.

The specific intent requirement for attempted aircraft piracy is debated, with the previous statute only necessitating general criminal intent. The court leans towards believing that a specific intent should be necessary for attempted aircraft piracy. Mr. Calloway did not object to the jury instruction regarding intent, and while the court assumes the instruction was erroneous, it does not warrant reversal unless it constitutes "plain error." For plain error to apply, it must be clearly established under current law, which, in this case, does not support Mr. Calloway's position as two circuits previously ruled against a specific intent requirement. The court has discretion in addressing plain errors, which are only recognized if they significantly undermine the fairness or integrity of judicial proceedings. Here, the overwhelming evidence of Mr. Calloway's guilt indicates that a properly instructed jury would have likely convicted him regardless of the supposed error.

Additionally, the court is vacating Mr. Calloway's conviction for interference with flight crew members, as it is a lesser-included offense of attempted aircraft piracy. The district court justified an upward departure from sentencing guidelines based on factors including the involvement of multiple victims, serious physical injuries, significant property damage, and the potential for extreme danger. Mr. Calloway contests the justification for multiple victims as it is standard in aircraft piracy cases and argues that the court did not adequately connect its decision to the guidelines' structure.

A departure from sentencing guidelines can only be overturned if the district court is found to have abused its discretion, as established in Koon v. United States. In this case, no abuse of discretion was identified. Mr. Calloway's actions harmed multiple victims, including three crew members and FedEx, with at least four individuals affected. The crew members suffered serious physical injuries, justifying a departure under U.S.S.G. 5K2.2. Additionally, FedEx faced over $800,000 in property damage, which supports a departure under U.S.S.G. 5K2.5. The district court also appropriately considered the public risk posed by Mr. Calloway's actions, referencing U.S.S.G. 5K2.14. Consequently, the conviction for interference with flight crew members was vacated, while the conviction and sentence for attempted aircraft piracy were affirmed.