United States of America v.  Mordhai Gilady

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4463 
MORDHAI GILADY,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-02-1-A)
Argued: January 22, 2003
Decided: April 9, 2003
Before WIDENER and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Gregory Bruce English, ENGLISH & SMITH, Alexan-
dria, Virginia, for Appellant. Mark Alex Grider, Special Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Paul
J. McNulty, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Mordhai Gilady was convicted of violating 49 U.S.C. § 46504,
interfering with flight crew and attendants. District Court Judge Leo-
nie Brinkema of the Eastern District of Virginia sentenced Gilady to
two years of supervised probation and ordered him to pay $2,799.02
in restitution to Delta Airlines. On appeal, Gilady argues that there is
insufficient evidence in the record to sustain his conviction.* For the
reasons that follow, we affirm his sentence.
I.
On November 11, 2001, Gilady boarded a Delta flight in Orlando,
Florida, en route to New York’s La Guardia Airport. Kyle Marie
Thompson, a flight attendant on the Delta flight, showed Gilady to his
seat, at which time Gilady became agitated and annoyed, stating that
he would not sit in his assigned seat. Although it was not clear at the
time of the incident, Gilady testified that he wanted to change his seat
because he was experiencing severe pain and swelling in his leg
because of an old injury. At Gilady’s trial, Thompson testified that
Gilady began pacing in the aisle and refused to comply with Thomp-
son’s request that he be seated. Gilady asked to speak with Jayne
Whyte, the head flight attendant on the Delta flight. Whyte left her
position in first-class to speak with Gilady, who, according to Whyte,
was "very angry" and yelled at her to change his seat. At one point
during her encounter with Gilady, Whyte raised her hands in self-
defense because she felt that Gilady was "getting a little bit too close
to [her]." At Gilady’s criminal trial, both Whyte and Thompson testi-
*During oral argument, Gilady abandoned as moot his argument that
the district court improperly ordered him to pay restitution to Delta Air-
lines. Thus, the only issue on appeal is whether there is sufficient evi-
dence in the record to sustain his conviction.
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fied that during their respective encounters with Gilady on the Delta
flight, Gilady stood three to six inches from each of them and yelled
at them both; that Gilady’s behavior was intimidating to them both;
and that because of his conduct during the flight, they were unable to
complete their respective in-flight duties. However, both Whyte and
Thompson testified that Gilady did not strike or threaten to strike
either of them.
James Decker, a police lieutenant from Bloomfield, New Jersey,
was a passenger on the Delta flight. At trial, Decker corroborated
Whyte’s and Thompson’s account of Gilady’s behavior. Decker testi-
fied that Gilady yelled at Thompson and Whyte, using extreme pro-
fanity. According to Decker, Gilady "got into the face of [one] of the
[flight attendants]" and told her that he wanted to get off the plane.
Because Decker believed that Gilady "was threatening a stewardess
and threatening [his] life as well as anyone else’s [on the flight]," he
sat next to Gilady until the plane landed at Dulles International Air-
port in Washington, D.C. At Dulles, Gilady was arrested and subse-
quently indicted for violating 49 U.S.C. § 46504, interfering with
flight crew and attendants.
At the end of Gilady’s one-day bench trial on June 7, 2002, Judge
Brinkema convicted Gilady of interfering with the Delta flight crew
and attendants. She sentenced Gilady to two years of supervised
release and ordered him to pay restitution to Delta airlines and a man-
datory special assessment of one hundred dollars. At his sentencing,
Judge Brinkema explained that "although [she] was satisfied that
[Gilady] internally did not intend to injure or scare anybody . . . that
[his] behavior in the context of . . . post-September 11 created a rea-
sonable basis in the minds of those around [Gilady] that they were at
risk from [him]." Gilady then filed this appeal, challenging the suffi-
ciency of the evidence supporting his conviction.
II.
In an appeal from a bench-trial verdict in a criminal case, this
Court must examine whether "‘there is substantial evidence, taking
the view most favorable to the government,’ to support the convic-
tion." United States v. Ismail, 97 F.3d 50, 55 (4th Cir. 1996) (internal
citation omitted).
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III.
49 U.S.C. § 46504 sets forth the elements of the crime of interfer-
ing with flight crew and attendants. Section 46504 states in relevant
part:
An individual on an aircraft in the special aircraft jurisdic-
tion of the United States who, by assaulting or intimidating
a flight crew member or flight attendant of the aircraft,
interferes with the performance of the duties of the member
or attendant or lessens the ability of the member or attendant
to perform those duties, shall be fined under Title 18,
imprisoned for not more than 20 years, or both. . . .
49 U.S.C. § 46504. Thus, in order to sustain a conviction under this
statute, the government must prove that Gilady: (1) interfered with,
or lessened the ability of the Delta flight attendants to perform their
respective duties on the Delta flight by; (2) assaulting or intimidating
them. The parties do not dispute that Gilady’s conduct interfered with
the ability of Thompson and Whyte to complete their respective in-
flight tasks. To this point, both flight attendants testified that they
were unable to complete their respective duties during the flight
because of Gilady’s behavior. Thus, the issue is whether there is suffi-
cient evidence that Gilady intimidated or assaulted the Delta flight
attendants.
In his appeal, Gilady contends that while his conduct during the
Delta flight was "inappropriate, obnoxious, and rude," his behavior
did not rise to the level of being assaultive or intimidating as required
to sustain his conviction under § 46504. For the following reasons, we
disagree.
We do not find that Gilady assaulted Whyte or Thompson. Indeed,
both flight attendants testified that Gilady did not touch or threaten to
strike either of them. After reviewing the record evidence, however,
we do conclude that Gilady intimidated Thompson and Whyte within
the meaning of § 46504.
In order to prove intimidation within the meaning of § 46504, "it
is sufficient that the conduct and words of the accused would place
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an ordinary, reasonable person in fear." United States v. Meeker, 527
F.2d 12, 15 (9th Cir. 1975) (interpreting the predecessor statute to
§ 46504). In this case, both Whyte and Thompson testified that Gila-
dy’s behavior, i.e., yelling at them while standing three to six inches
away, was intimidating and that they were scared that there would be
a physical altercation. Given the heightened awareness after Septem-
ber 11th and the flight attendants’ testimony that they were frightened
by Gilady’s conduct, this Court concludes that there is sufficient evi-
dence in the record to support a finding that a reasonable person
would have been placed in fear by Gilady’s conduct during the Delta
flight.
IV.
Because we conclude that Gilady intimidated the flight attendants
within the meaning of § 46504, we affirm Gilady’s conviction and
sentence.
AFFIRMED
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