APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before SEITZ, Chief Judge, FORMAN and HUNTER, Circuit Judges
Present: SEITZ, Chief Judge, FORMAN, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN and HUNTER, Circuit Judges
Appellant Donald Thomas Margraf appeals his conviction for attempting to carry a "concealed deadly or dangerous weapon" aboard a commercial aircraft in violation of 49 U.S.C. § 1472(1) (1971). After waiving trial before the district court, he was tried before a magistrate pursuant to 18 U.S.C. § 3401 (1971), found guilty, and fined $100. He appealed his conviction to the district court pursuant to 18 U.S.C. § 3402 (1971), which affirmed. This court's jurisdiction is predicated upon 28 U.S.C. § 1291 (1971).
Appellant was arrested at Philadelphia International Airport while attempting to board a flight to San Francisco, California. Airline employees had notified the Customs Security Officer at the boarding gate that appellant conformed to the "Hijacker Profile." Consequently, as appellant passed through the magnetometer, a metal detection device placed at the gate, his reading on the meter was checked. Because it indicated the possible presence of a weapon on appellant, he was asked to step through the magnetometer again. A second positive reading resulted. The officer then detained appellant. The officer testified that he asked appellant if he were carrying "a knife, a weapon, or any other large metallic object."*fn1
After appellant responded negatively to the officer's inquiry, he was searched and a folding pocketknife seven and one-half inches in overall length with a three and one-quarter inch blade was discovered in his right front pocket.
The magistrate held that appellant had violated 49 U.S.C. § 1472(1):
[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 $1,000 or imprisoned not more than one year, or both.
Appellant challenges this conviction on two grounds. He claims that it is necessary for the government to prove a specific intent to carry a "concealed deadly or dangerous weapon" onto a plane in order for a defendant to be convicted. In other words, it is not sufficient for the government to show that a defendant was boarding a plane with a concealed deadly weapon on his person; it must go further and show that the defendant was aware that his weapon was dangerous, and knowing this, still intended to carry the weapon aboard. Appellant's second contention is that the pocketknife he was carrying could not be considered a "deadly or dangerous weapon."
Congress added paragraphs (i) through (m) to § 1472 in 1961 in an attempt to combat airplane hijacking.
"The primary purpose of this legislation is to amend the Federal Aviation Act of 1958 so as to extend Federal criminal laws to certain acts committed on board aircraft - in particular, such acts as aircraft 'hijacking', murder, manslaughter, assault, mainming, carrying concealed deadly or dangerous weapons, and stealing personal property....
"Recent events have demonstrated the urgent need for stronger Federal laws applicable to criminal acts committed aboard commercial and private aircraft.
"The provisions of this legislation, it will be noted, are based on the use of criminal sanctions as a deterrent to the commission of criminal acts....
"Broad, stringent legislation such as is proposed here cannot, of course, prevent piracy of aircraft, but it is to be hoped that the enactment of laws providing stiff penalties for various crimes in air commerce will deter all except the hopelessly unbalanced from risking life and liberty in such undertakings." H.R. Rep. No. 958, 87th Cong., 1st Sess. (1961), 1961 U.S.
Although as written § 1472(l) does not contain a specific intent requirement, appellant would have us read one into the statute. This we decline to do.
In Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960), Justice (then Circuit Judge) Blackmun listed the factors to consider in whether a statute could be construed as not requiring a specific intent:
"... where a federal criminal statute omits mention of intent and where it seems to involve what is basically a matter of policy, where the standard imposed is, under the circumstances, reasonable and adherence thereto properly expected of a person, where the penalty is relatively small, where conviction does not gravely besmirch, where the statutory crime is not one taken over from the common law, and where congressional purpose is supporting."
The presence of these factors here plus the strong contrast between paragraph (1) and 49 U.S.C. § 1472(m) compel us to hold that paragraph (1) does not contain a specific intent requirement. Paragraph (m) was passed by Congress at the same time as paragraph (l). The fact that paragraph (m) contains an express intent requirement is particularly convincing evidence that Congress did not intend such a requirement for paragraph (l). That the maximum penalties for violating paragraph (l) are much less than those for violating paragraphs (i) and (j) is also an indication that no specific intent is necessary for a violation of paragraph (l).*fn2
A person who boards a plane with a concealed deadly weapon need not intend to use it to be a hazard. The mere presence of a weapon on board a plane creates a hazard because it may be seized and used by a potential hijacker.
In view of the seriousness of the hijacking problem - both at the time of enactment and at the present*fn3 - it is reasonable to conclude that Congress meant paragraph (l) not to have a specific intent requirement. To include a specific intent requirement would be judicial legislation, and such inclusion could seriously hinder attempts at enforcing this statute.
The dissent contends that this case is governed by United States v. Freed, 401 U.S. 601, 28 L. Ed. 2d 356, 91 S. Ct. 1112 (1971). In particular, it finds Justice Brennan's concurrence in that case persuasive. Freed does not control this case. For each particular statute which we consider, we have to make a determination as to what Congress intended. As Justice Brennan pointed out, in Freed the court was considering amendments to a pre-existing statute. Cases decided under the pre-existing statute had held that a specific intent requirement was necessary to convict. The Court decided that Congress approved these cases in amending the statute. We have no similar case history before us here. Nor do we have any other indication that specific intent is necessary.
"DEADLY OR DANGEROUS WEAPON"
If, therefore, the pocketknife in this case can be described as a "concealed deadly or dangerous weapon," it will be necessary to uphold appellant's conviction.
The House Report accompanying paragraph (l) stated:
"Consideration was given to attempting to define the term 'deadly or dangerous weapon'. However, this is not practicable. These terms have been used without definition in other provisions of Title 18, United States Code, and in many State Criminal laws. The courts will determine in each case, as it arises, whether the weapon in question was deadly or dangerous." H.R. Rep. No. 958, 87th Cong., 1st Sess. (1961), 1961 U.S. Code Cong. and Adm. News 2563, 2570.*fn4
This case-by-case determination in turn depends on the entire context of the situation being considered.
"[What] in one context might not be a dangerous weapon in a different context would be a dangerous weapon, giving consideration to the language and purpose of the specific statute involved, the nature, use or anticipated use of the 'weapon' involved and the consequences logically flowing from its use. See United States v. Barber, D.C. Del. 1969, 297 F. Supp. 917, 922, 923, and cases cited therein; Baker v. United States, 5 Cir. 1969, 412 F.2d 1069; United States v. Brown, 9 Cir. 1969, 413 F.2d 878". United States v. Ware, 315 F. Supp. 1333 (W.D. Okla. 1970).
Appellant contends that since his knife was found in a logical place, his pocket, and since there was no indication that he intended to use the knife in a threatening way, the finding of the magistrate that this was a deadly weapon cannot be upheld.
There are several factors present here which in view of the congressional intention to prevent potential weapons from being carried aboard planes lead us to uphold the determinations of the magistrate and of the district court that the knife in question was a "concealed deadly or dangerous weapon."
First, the knife (open) was seven and one-half inches long, including blade and handle and its blade was three and one-quarter inches long.*fn5 It was certainly capable of being used as a weapon. Second, in a boarding situation it must be emphasized that administrative agents and courts have to act prospectively. They do not have the advantage of hindsight to see if a person with a knife used it in any threatening manner. Nor can one reasonably expect a hijacker to announce his plan so early. To adhere to appellant's argument would give many prospective hijackers a free try at evading airport security measures.*fn6 The dissent's ...