The opinion of the court was delivered by: SCALERA
In an information defendant was charged with one count of attempting to board United Air Lines Flight No. 997 at the Greater Pittsburgh Airport while carrying a concealed weapon in her hand luggage in violation of 49 U.S.C. § 1472(l).
After trial by jury, she was convicted.
Defendant has filed three post-trial motions -- a motion for a new trial, a motion in arrest of judgment, and motion for judgment of acquittal. A fair reading of these motions discloses that they present two issues: (1) whether the evidence is sufficient to sustain the verdict, specifically whether the facts support the jury's finding that defendant was attempting to board an airplane; and (2) whether the defendant was selectively prosecuted in violation of her constitutional right to due process of law and to equal protection of the law.
Defendant contends that the evidence was insufficient to sustain the jury's verdict because the facts do not constitute an attempt to board an aircraft. Specifically, defendant argues that because she had not yet reached the agent at the departure gate to whom her flight ticket would be surrendered her action of passing through the magnetometer located in the corridor away from the agent's desk could not be considered an "attempt" to board an aircraft.
The court is required to view the evidence, and all inferences that may be reasonably drawn therefrom, in the light most favorable to the government. United States v. McClain, 469 F.2d 68, 69 (3d Cir. 1972); United States v. Schall, 371 F. Supp. 912 (W.D.Pa.1974). The evidence adduced at trial establishes the following facts.
On March 25, 1974, at approximately 7:00 p.m., the defendant arrived at the ticket counter of United Air Lines at the Greater Pittsburgh International Airport and purchased a ticket for United Air Lines Flight No. 997 bound for Tampa, Florida. Defendant then proceeded with her ticket and her hand luggage from the ticket counter toward Flight 997's departure gate. In the airport's corridor leading to the departure gates, there are numerous signs which indicate that it is a federal offense to board or to attempt to board a commercial aircraft with a concealed weapon. The signs contain the advice that passengers will be searched for weapons. One of these warning signs was admitted into evidence as government's "Exhibit No. 2."
Before entering the departure lounge, in which the gates and boarding ramps to the airplanes are located, the defendant passed through the magnetometer. The magnetometer, a device which detects the presence of concealed metal objects on persons walking through it, is located approximately thirty yards from the departure lounge area. Passing through the magnetometer, a person is instructed by the airport security staff to place all metallic items on one's person in a tray, and then asked to step through the magnetometer. At the same time, all hand luggage of a person passing through the magnetometer is surrendered to the airport security personnel in order that it may be screened by X-ray for concealed weapons. As the defendant was passing through the magnetometer, a security guard who was watching the X-ray scanner discovered that the device registered the presence of a gun in the defendant's handbag. When the gun, a loaded pistol,
was discovered, the defendant exclaimed that the gun belonged to her husband. After the gun was seized, the defendant was briefly detained by the airport security personnel. Then she was permitted to board Flight No. 997, which United had kept waiting for her.
Defendant's contention that the jury's verdict is unsupported by the evidence essentially focuses on the physical location of the magnetometer relative to the departure gates and the fact that all persons, passengers and non-passengers, desiring to enter the departure lounge area are required to pass through the magnetometer. Defendant argues that because she did not surrender her ticket to the airline agent located next to the departure gate and because both passengers and non-passengers pass through the magnetometer, her actions do not constitute an "attempt" to board an aircraft. Further, defendant maintains that the conviction must be overturned because the evidence does not support the conclusion that she attempted to conceal the gun. In support of her position, defendant cites United States v. Brown, 305 F. Supp. 415 (W.D.Tex.1969) and the legislative history of § 1472(l). This court disagrees.
The case of United States v. Brown, supra, does not support defendant's position. Although the facts of Brown indicated that the defendant in Brown had surrendered his flight ticket to the agent at the customer service desk located near the departure gate, the definition of "attempt" mentioned in Brown applies to the facts of the case sub judice. In Brown, "attempt" was defined as:
". . . [an] effort or endeavor to accomplish a crime, amounting to more than mere preparation or planning for it, which, if not prevented, would have resulted in full consummation of the act attempted, but which in fact, does not bring to pass the party's ultimate design." 305 F. Supp. at 415.
It is apparent that the defendant's actions constitute an "attempt" to board an airplane with a concealed, dangerous weapon. Had the defendant's weapon not been discovered at the magnetometer, she would have boarded the airplane with a concealed, loaded pistol in her handbag. The defendant had purchased her ticket and she had proceeded toward the departure gate for the purpose of boarding her flight. The logical inference which could be properly drawn by the jury from these facts is that the defendant was attempting to board Flight No. 997.
The fact that passengers and non-passengers alike are subjected to the magnetometer does not support plaintiff's contention. In the case sub judice, it is undisputed that defendant possessed a flight ticket and carry-on luggage for the boarding of her anticipated flight. The fact that the magnetometer was located before the area where a passenger would surrender the ticket to the airline agent is of no relevant significance in light of the facts which prove that defendant passed through the area in order to board a plane.
Defendant argues that she was the victim of selective prosecution by the government, thus violating her constitutional right to due process of law and equal protection of the law. Defendant contends that she was intentionally discriminated against by the government's prosecution of this case because the statistics of the Greater Pittsburgh Airport police show that the vast majority of persons from whom weapons have been confiscated are not prosecuted. Appended to defendant's brief are the "Passenger Screening Reports" of the Allegheny County Police at the Greater Pittsburgh Airport covering the period from October, 1973 to, and ...