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UNITED STATES v. MARGRAF

January 27, 1972

UNITED STATES of America
v.
Donald Thomas MARGRAF


Weiner, District Judge.


The opinion of the court was delivered by: WEINER

WEINER, District Judge.

 The defendant, Donald Thomas Margraf, is charged with attempting to board an aircraft being operated by an air carrier in air transportation while having on his person a concealed deadly or dangerous weapon, in violation of 49 U.S.C. § 1472(l). The defendant appeared before a United States Magistrate and, after being apprised of his right to be tried before a Judge of the United States District Court and the consequences of a waiver of same, consented in writing to be prosecuted before the Magistrate pursuant to 18 U.S.C. § 3401. On November 24, 1971, the defendant was found guilty by the Magistrate and the case is before us on appeal under 18 U.S.C. § 3402. Rule 8(d) of the Rules of Procedure for the Trial of Minor Offenses, effective January 27, 1971, provides as follows:

 
" Scope of Appeal. The defendant shall not be entitled to a trial de novo by the judge of the district court. The scope of appeal shall be the same as on an appeal from a judgment of a district court to a court of appeals".

 The facts surrounding the prosecution are as follows. On or about November 21, 1971, while attempting to board TWA Flight 35, Philadelphia to San Francisco, a metallic sensing device was activated as the defendant passed it. After stating to a United States Customs Security Officer that he had no weapon or other large metallic object on his person, a search of the defendant's person disclosed a "case folding knife" in the right trouser pocket. The overall length of the knife was 7 1/2 inches, with a blade of 3 1/4 inches.

 Two questions are presented in this appeal:

 I. Is mens rea, or criminal knowledge or intent, a prerequisite for conviction under 49 U.S.C. § 1472(l)?

 II. Does the knife in question constitute a "dangerous or deadly weapon" under the language of 49 U.S.C. § 1472(l)?

 I

 49 U.S.C. § 1472(a), which sets out a general criminal penalty for violation of the "anti-hijacking" statute, requires a knowing and willing act. This section reads as follows:

 
"Any person who knowingly and willfully violates any provision of this chapter . . . for which no penalty is otherwise provided in this section . . . shall be deemed guilty of a misdemeanor . . . . "

 It will be noted that this section applies only to those sections of the Act for which no specific penalty is provided. Section 1472(l) does set out a specific penalty, and omits any reference to criminal intent as an element of the offense. Subsection (l) provides:

 
". . . whoever, while aboard an aircraft being operated by an air carrier in air transportation, has on or about his person a concealed deadly or dangerous weapon, or whoever attempts to board such an aircraft while having on or about his person a concealed deadly or dangerous weapon, shall be fined not more than $1000 or imprisoned not more than one year, or both".

 Section 4172(l) was adopted in 1961 as an amendment to the Federal Aviation Act of 1958, which included subsection (a), and we find that the omission of the words "knowingly and willfully" was not mere inadvertence, but rather a clear Congressional mandate establishing the ...


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