United States v. Gray

United States Court of Appeals
For the First Circuit

No. 13-1909

UNITED STATES OF AMERICA,

Appellee,

v.

NANCY GRAY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Howard, Lipez, and Thompson,
Circuit Judges.

Inga L. Parsons, for appellant.
Kelly Begg Lawrence, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

March 13, 2015
 THOMPSON, Circuit Judge. Words are slippery things. Take

"malice," its legal definitions alone can encompass: the intent to

commit a wrongful act, reckless disregard for the law, ill will,

wickedness of heart, and the intent to kill. See Black's Law

Dictionary 968-69 (7th ed. 1999). But can malice's fifty shades of

meaning include "improper motive?" Former flight attendant Nancy

Gray, convicted of providing false information regarding a bomb

threat on an airplane, seeks to convince us that she was denied a

fundamentally fair trial when her jury was instructed that malice

meant "evil purpose or improper motive." Because we find that the

district court's definition just won't fly, we vacate Gray's

conviction and remand this case for a new trial.

I.

BACKGROUND

A. Bomb on Board

By September of 2009, Nancy Gray had been an American

Airlines flight attendant for over ten years. On September 30, she

was scheduled to work Flight 1318 from Boston to Miami. That

afternoon, Gray and the rest of the flight crew boarded and began

their pre-flight safety checks as the cabin service crew cleaned

the aircraft.

Cabin service crew member John Marino worked his way from

the back of the plane to the front, cleaning first the rear

lavatories, then the middle lav before finishing with the first

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class lav. This task included restocking the dispensers with paper

towels, tissues, and toilet paper. To restock the paper towels,

Marino had to unlatch and open a small door to access the storage

area behind the towel dispenser. When he opened that door in the

middle lav on Flight 1318, Marino did not see anything written on

the inside of the door. While Marino was finishing up in the first

class cabin, he saw a female flight attendant (Gray) enter the

middle lav, and come out again.

Gray then hurried over to the lead flight attendant and

told him that she had found a note in the middle lav. Together

they went back to the lav, where the lead flight attendant saw,

written on the inside of the storage compartment door, the words

"Bomb on Board! BOS-MIA." They then rushed to the cockpit to

notify the captain. Pre-boarding had begun, and by the time they

returned to the middle lav with the captain, it was occupied by a

passenger. Once he could enter the lav, the captain saw the

message and decided to stop boarding and notify the authorities.

The aircraft was evacuated and towed to a remote area of

Logan Airport where, over a period of several hours, it was

searched. No bomb was found.

B. The Confession

On December 15, 2009, Gray, whose job was suspended at

the time, contacted FBI Special Agent Joseph DeVuono at his office

at O'Hare International Airport to request an interview to "clear

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her name." They arranged to meet at DeVuono's office on the

morning of December 23. Gray arrived at around 9:30 a.m., carrying

"a very large sized soft drink." DeVuono offered her a cup of

coffee, which she declined, but at her request, he bought her a

chocolate bar. Gray met with DeVuono and Special Agent David Mertz

for an hour and a half before taking a break. At the break, Gray

-- who had been sipping the soda and eating the candy bar during

the interview -- sought and received permission to test her blood

sugar level.1 Gray showed the agents that her blood sugar was 106,

and indicated that it was a good number and that she felt fine.

Gray next met with Special Agent Jay Cherry, who

interviewed her for approximately two hours.2 DeVuono then

rejoined Gray and conducted a final hour and a half interview,

during which she wrote and signed the following confession:

After careful consideration and with deep
regret and remorse I take blame for writing on
the door on Sept 30, 2009 Boston to Miami.
The codes BOS-MIA were already on the door. I
did not have anything to do with any other
threats made, ever to American Airlines.
After I did it I realized what I had done. I
have been under extreme, stressful personal
things in my life. After the ground worker
called me a "fucking bitch" I snapped for a
moment. I care deeply about AA, crew & the

1
There is some dispute over the question of whether Gray had
been diagnosed with diabetes. Defense counsel agreed that she
would not use the word "diabetes" at trial, although the issue of
"blood sugar levels" did come before the jury.
2
Although not mentioned at trial, during this interview Gray
took a lie detector test, which was administered by Cherry.

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 passengers. I have loved my job & still do.
I will never do it again. To clarify what I
wrote "Bomb on board!" It was wrong. I'm
truly sorry. I never want a 9-11 to happen
again and I did it more to get the ground
workers in trouble than cause what I did.

She left the FBI office at 3:45 p.m., and according to DeVuono, she

did not appear impaired or disoriented. According to her then-

husband, Scot Brewer, when Gray returned home around 5:30 p.m.,

"she was walking funny, talking in slurred speech" and asking to

see her mother, who had died ten years earlier. Brewer gave her

sweet tea and a PopTart and "she slowly started to come back

around."

C. The Trial

On August 5, 2010, a grand jury indicted Gray for giving

false information regarding a bomb threat on an airplane in

violation of 49 U.S.C. § 46507(1).3 Gray pled not guilty.4

During the four-day trial that ensued, the government

introduced Gray's signed confession into evidence, and elicited

testimony from the FBI Special Agents, American Airlines employees,

3
49 U.S.C. § 46507 provides for a term of imprisonment of not
more than five years if an individual "knowing the information to
be false, willfully and maliciously or with reckless disregard for
the safety of human life, gives, or causes to be given, under
circumstances in which the information reasonably may be believed,
false information about" a bomb threat on an airplane.
4
Gray filed a motion to suppress her confession, and attached
an affidavit which alleged that she had been coerced into signing
a false confession. The government opposed the motion, and on the
first day of her jury trial, Gray withdrew it.

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and several crew members of Flight 1318 about the bomb hoax

incident and subsequent investigation. Flight Attendant Stacy Hyde

testified to a possible motive, saying that Gray was "very upset

with" American Airlines's handling of a medical issue she'd had.

On direct examination, Hyde recalled that, previous to the day of

the flight, Gray had told her "that she was going to, 'Get back at

them.'" During cross-examination, Hyde was shown the statement she

made to a state police officer immediately following the bomb hoax.

At that time, she did not report that Gray said she'd "get back at"

American Airlines. Rather, she quoted Gray as saying "They'll

never be able to fire me, I'll have to quit."

Gray's ex-husband, Dr. Brewer, testified that Gray seemed

incoherent and disoriented when he spoke to her after she left her

FBI interview.5 Gray did not take the stand.

D. The Jury Instructions

Both Gray and the government submitted proposed jury

instructions. Because the statute she was accused of violating

requires the government to prove that Gray wrote the threat

"knowing the information to be false, willfully and maliciously or

5
Gray sought to offer her ex-husband's testimony that he
tested her blood sugar level when she returned home from the FBI
interview and saw that the monitor showed a reading of 52, a level
he felt was dangerously low. Gray argues that the district court
erred in ruling that Dr. Brewer (a dentist) was not an expert and
could not testify about testing Gray's blood sugar, and the
significance of the level he read. However, because we are
vacating her conviction on other grounds, we need not address that
argument.

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with reckless disregard for the safety of human life," both parties

offered instructions defining "maliciously." 49 U.S.C. § 46507(1).

Citing Sand's Modern Federal Jury Instructions - Criminal ¶13.04,

Instruction 13-24, Gray suggested the definition: "[t]o act

maliciously means to do something with an evil purpose or motive."

Citing United States v. Gullett, 75 F.3d 941, 947 (4th Cir. 1996),

the government offered "[t]o act maliciously means to 'act[]

intentionally or with willful disregard of the likelihood that

damage or injury would result.'"

The district court conducted a charging conference,

during which the government pointed out that this circuit has never

defined malice in the context of § 46507. The government argued

that absent any legislative history, the common-law definition the

government had offered was the better standard. Nevertheless, the

court determined that it would "sharpen" the instruction by

including the definition of malice offered by the defense. The

court then instructed the jury, saying:

And then we turn to the question of what we
call "malice," "willful or malicious conduct."
To act maliciously in this context means to do
something with an evil purpose or motive. It
means to do something that is knowingly wrong,
and here suggestions have been made that Ms.
Gray had some malice toward American Airlines.
But the [g]overnment has to prove that and you
have to evaluate it. (emphasis added).

At the conclusion of jury instruction, the court held a

sidebar conference and the government objected to the definition of

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malice, arguing that the jury didn't need to find motive at all,

that evil intent was sufficient. The court noted that "evil

purpose or motive" was phrased in the disjunctive, and added "I

understand the objection. I think I am going to leave it where it

is." However, after sidebar, the court again addressed malice,

telling the jury "what 'malice' means is to act with an evil

purpose or an improper motive, that is 'or,' and it is up to you to

decide whether or not the circumstances under these conditions, if

you find them, constitute either acting with an evil purpose or

acting with an improper motive." (emphasis added). Defense counsel

asked for a sidebar and pointed out that "I think under [Sand's

Modern Federal Jury Instruction] it's 'evil purpose or evil

motive.' 'Improper purpose [sic]' I think lessens the burden."

The court replied "No, it doesn't," and the jury was sent to

deliberate.

An hour and twenty minutes later, the jury sent a note

back with a question: "What are the 4 criteria . . . to consider

for a verdict (e.g. malice)?" The court noted to the attorneys

that defense counsel was concerned about the use of the word

"improper" and asked counsel "what, assuming that I am going to

respond more specifically about 'malice,' do you want?" Defense

counsel continued to argue for "evil purpose or motive." The court

offered its own definition and, after some discussion, defense

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counsel asked for a brief break to review the relevant cases.6 The

court agreed, and suggested that, so the jury could keep working,

it would send back just the four elements under the statute, and

would wait to "see if they ask more about 'maliciously.'" Both

parties agreed. Twenty-five minutes later, the jury returned, not

with a question, but with a verdict -- guilty. Gray was sentenced

to twenty-seven months in prison, with three years of supervised

release. This timely appeal followed.

II.

DISCUSSION

Gray makes several arguments on appeal, but one we find

dispositive.7 She argues that the district court erred by

instructing the jury that "malice could be an improper purpose,

thus reducing the government's burden of proof." The government

counters that Gray's argument "should be deemed waived," and that

in any event, the court's instruction was correct.

6
The court offered: "malice in its legal sense characterizes
all acts done with an evil disposition, a wrong and unlawful motive
and purpose, the willful doing of an injurious act without lawful
excuse." This definition was based on that of Chief Justice Shaw
in Commonwealth v. York, 9 Met. 93, 105 (Mass. 1845). The
government was "content" with that definition, but suggested that
no additional definition of malice needed to be supplied.
7
In addition to challenging the court's decision to bar expert
testimony by Brewer, Gray argues that the prosecutor permitted
false testimony when two eye witnesses contradicted their earlier
statements. She further asserts that the district court erred by
advising the jury that she had a right against self-incrimination,
and by imposing a two-point sentencing enhancement for obstruction
of justice. As previously stated, we do not reach these arguments.

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 A. Waiver

The government asserts that Gray offers us only a

"skeletal, perfunctory argument" about the definition of malice.

We have often stated that "we deem waived claims not made or claims

adverted to in a cursory fashion, unaccompanied by developed

argument." Rodriguez v. Municipality of San Juan, 659 F.3d 168,

175 (1st Cir. 2011). We require parties to "spell out their issues

clearly, highlighting the relevant facts and analyzing on-point

authority." Id. Specifically, parties "must give us the 'raw

materials' . . . so that we can do our work." Id.

Here, Gray offered a short but on-point argument in her

opening brief, citing to the Fourth Circuit's decision in United

States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000), for the

proposition that "evil purpose or motive . . . more accurately

reflects the proper legal standard necessary to convict a person of

acting 'maliciously'" under the analogous Bomb Hoax Act, 18 U.S.C.

§ 35. She outlined for us the sequence of events during jury

instruction, and provided a transcript of the proceeding. She

further developed her argument in her reply brief, and during oral

argument, she focused entirely on this single issue. Therefore, we

find the argument has been sufficiently developed and is not

waived.

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 B. Jury Instruction

We proceed, then, to the question of whether the court's

second attempt at defining malice -- "to act with an evil purpose

or improper motive" -- was error. "Preserved claims of

instructional error are assessed on appeal under a bifurcated

framework." United States v. Sasso, 695 F.3d 25, 29 (1st Cir.

2012). "[W]e consider de novo whether an instruction embodied an

error of law, but we review for abuse of discretion whether the

instructions adequately explained the law or whether they tended to

confuse or mislead the jury on the controlling issues." United

States v. Symonevich, 688 F.3d 12, 24 (1st Cir. 2012) (internal

quotations omitted). Gray's claim of instructional error involves

the district court's amended definition of the malice element in 18

U.S.C. § 46507(1), engendering de novo review. See Sasso, 695 F.3d

at 29.

The government asserts that, where a statute does not

define a common-law term like malice, courts presume that Congress

adopted the common-law definition of that term. See Morissette v.

United States, 342 U.S. 246, 263 (1952). The government had

offered such a common-law definition in its proposed jury

instruction: to "act intentionally or with willful disregard of the

likelihood that damage or injury would result;" and now argues that

the amended instruction given by the district court is the

substantive equivalent of that definition. Gray, on the other

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hand, proposed the definition found in Sand's Modern Federal Jury

Instructions for violations of both § 46507(1) and the analogous

Bomb Hoax Act, 18 U.S.C. § 35(b) which states, "To act

'maliciously' means to do something with an evil purpose or

motive." Sand's Modern Federal Jury Instructions-Criminal ¶13.04,

Instruction 13-24. In order to determine which definition of

malice to adopt to best reflect Congressional intent, we must

analyze the reasoning behind the conflicting definitions.

"[W]here a federal criminal statute uses a common-law

term of established meaning without otherwise defining it, the

general practice is to give that term its common-law meaning."

United States v. Bayes, 210 F.3d 64, 68 (1st Cir. 2000) (quoting

United States v. Turley, 352 U.S. 407, 411 (1957)). This is the

approach taken by the Eighth Circuit in United States v. Sweet, 985

F.2d 443, 445 (8th Cir. 1993). In a brief opinion involving the

analogous § 35(b) charge,8 the Eighth Circuit upheld a district

court's instruction defining "maliciously" as acting "intentionally

or with willful disregard of the likelihood that damage or injury

will result." Id. In doing so, it declined with little

explanation the defendant's proposal that the definition should

include the words "evil purpose or motive." Id.

8
We will explore the similarities between these two statutes
shortly.

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 However, we will not presume a common-law meaning if

there are "grounds for inferring any affirmative instruction from

Congress" to define it otherwise. Morissette, 342 U.S. at 273.

This is the tack followed by the Fourth Circuit in a case also

involving the related statute, the Bomb Hoax Act. The Fourth

Circuit found that an instruction including the "evil purpose or

motive" component "more accurately reflects the proper legal

standard necessary to convict a person of acting 'maliciously'

under § 35(b)." Hassouneh, 199 F.3d at 182. In reaching this

conclusion, the court examined the legislative history of the Bomb

Hoax Act to divine Congress's intent. Id. at 179-80. Because the

statute at issue here is very similar to § 35, it is worth

reviewing that history.

Prior to its amendment in 1961, 18 U.S.C. § 35 was a

misdemeanor statute that punished those who willfully and knowingly

imparted false information concerning a bomb threat. Id. at 179.

In 1961, the Act was amended to delete the word "willfully" and

incorporate the remaining language into the new subsection (a).

Id. at 180. At the same time, subsection (b) was added to make it

a felony to convey false information about a bomb threat "willfully

and maliciously or with reckless disregard for the safety of human

life." Id. at 180 (quoting 18 U.S.C. § 35(b)).

The Hassouneh court noted that the amended statute

indicated "a congressional intent to subject anyone who provides

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false information of the type proscribed in the statute to

punishment, but to punish those who make such statements 'willfully

and maliciously, or with reckless disregard for the safety of human

life' more severely." Id. at 180. As further evidence of this

intent, the court cited an Executive Communication from the United

States Attorney General to the Speaker of the House of

Representatives, made at the time the statute was amended to

provide for the separate penalties, which explained that the

earlier statute had created "judicial confusion over the

applicability of the statute in prankster cases." Id. (quoting

United States v. White, 475 F.2d 1228, 1233 n. 6 (4th Cir. 1973)

(quoting 1961 U.S. Code Cong. & Admin. News, p. 3053)). In

proposing the amendment that created separate penalties, the

Attorney General stated,

I submit to the Congress a bill which would
make it a felony for one to convey a false
report willfully and maliciously, or with
reckless disregard for the safety of human
life, and a misdemeanor to do so with
knowledge of its false character even though
without malice or reckless disregard for human
life. Such a statute would clearly show the
congressional intention to make it a criminal
offense to give false reports even without an
evil or reckless motive and would provide a
more adequate penalty for those whose actions
warrant it.

Id. (emphasis added). In his explanation of the need for the

amendment, the Attorney General thus equated the felony standard

"willfully and maliciously, or with reckless disregard" with "evil

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or reckless motive." Accordingly, in deciding that the defendant's

proffered "evil purpose or motive" instruction more accurately

reflected the proper legal standard, the Fourth Circuit found that

there were "considerable grounds for inferring that Congress

intended a meaning of 'maliciously' different from the common law

definition." Id. at 182.

Section 46507 and § 35 are very similar, as noted by Sand

when he chose to select the Fourth Circuit's definition of malice

as more appropriate to violations of § 46507(1). Both statutes

provide two separate penalties for those who convey false

information about bomb threats in aviation. Just as § 35(a)

describes a civil penalty and § 35(b) a felony, 49 U.S.C. §

46302(a) is a civil penalty for knowingly providing false

information about a bomb threat, while § 46507(1) is a felony for

providing the false information about the threat "willfully and

maliciously."

Like Sand, we find the Fourth Circuit approach more

persuasive. To repeat, "when Congress uses a common law term and

does not otherwise define it, it is presumed that Congress intended

to adopt the common law definition." United States v. Patterson,

882 F.2d 595, 603 (1st Cir. 1989). However that presumption is

overcome here when we consider the statutory scheme as a whole.

The only difference between § 46302(a) and § 46507(1) is the

addition of the words "willfully and maliciously." If

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"maliciously" means "intentionally," as the common law definition

states, then two redundancies would be created. First, as

Hassouneh explains, there would be no difference between the two

provisions, despite their very different penalties. See 199 F.3d

at 182. Second, a redundancy would result between "willfully" and

"maliciously" internal to § 46507(1).

"It is . . . a cardinal principle of statutory

construction that we must give effect, if possible, to every clause

and word of a statute." Williams v. Taylor, 529 U.S. 362, 404

(2000) (internal quotation marks omitted). The dissent favors a

common law definition of malice that "specifically requires

committing the wrongful act without justification, excuse, or

mitigation." United States v. Serawop, 410 F.3d 656, 664 (10th

Cir. 2005) (citing 50 Am. Jur. Homicide 2d § 37 (1999)). Were we

to adopt this definition, we would not be adequately giving effect

to the distinct mens rea of "willfully." As the district court

explained, willfully means "that a person acted deliberately and

intentionally; it was not done inadvertently or mistakenly. It was

done on purpose as opposed to accidentally or carelessly or

unintentionally." The only distinction between this and the

dissent's definition of malice are the words "without

justification, excuse, or mitigation." We do not believe that is

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sufficient to reflect Congress's intent.9 See Hassouneh, 199 F.3d

at 181 (noting that "maliciously" was added to 18 U.S.C. § 35(b)

because "willfully" by itself "does not necessarily embrace any

evil purpose but comprehends merely a voluntary and conscious

imparting or conveying of the false information with which the

statute deals") (internal quotation marks omitted).

We believe Sand's definition, on the other hand, is more

in line with Congressional intent. The history of § 46507(1)

reveals that its statutory precursor, 49 U.S.C. § 1472(m), was

modeled after § 35. United States v. Irving, 509 F.2d 1325, 1328-

29 (5th Cir. 1975). The wiser course then, given how closely

related the two statutes are, is to follow Sand's approach and

define malice in the context of both § 35(b) and § 46507(1) as

"evil purpose or motive."

9
Footnote 1 of the dissent implies that "a defendant who makes
a knowingly false bomb threat in an effort to obtain help from law
enforcement while being held hostage" could be found guilty of the
civil penalty version of the crime -- and not the felony version --
because he made the threat "willfully" but not "maliciously."
However, Congress never intended to apply the civil penalty to
individuals who are justified in making false bomb threats.
Rather, the civil penalty was created to prosecute "pranksters."
Cf. Hassouneh, 199 F.3d at 181 (stating that "the statute seems to
contemplate that many pranksters whose poorly developed senses of
humor lead them to make statements prohibited by § 35 will be
subject to the civil penalty."). Moreover, such an individual
would likely be able to raise a strong justification affirmative
defense. See, e.g., Dixon v. United States, 548 U.S. 1, 8, 13-14
& n.7 (2006); United States v. Leahy, 473 F.3d 401, 405-09 (1st
Cir. 2007).

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 We recognize that there are multiple common law

definitions of malice.10 The dissent favors a common law definition

that is frequently used to distinguish manslaughter from murder.

See Serawop, 410 F.3d at 664. The Seventh Circuit, on the other

hand, recently upheld another common law definition of

"maliciously" as "[acting] intentionally or with deliberate

disregard of the likelihood that damage or injury will result."

United States v. Grady, 746 F.3d 846, 848 (7th Cir. 2014)

(addressing the definition of maliciously within the context of the

federal arson statute). The Grady court stated that this

definition is "indeed a common definition of the word," is found in

the Fourth, Eighth and Eleventh Circuit model jury instructions,

and "is how the common law traditionally defined the term." Id. at

849. Furthermore, the Grady court explicitly rejected the

dissent's position that "malice" must include the phrase "without

just cause or reason." Id. It is clear there is no "one size fits

all" common law definition of malice. That said, we find "evil

purpose or motive" to be a closer fit within the context of §

46507(1).

There are a couple of other reasons to favor Gray's

proposed definition. "[S]tatutes which relate to the same subject

10
The dissent suggests that our decision in Hernandez-Cuevas
v. Taylor, 723 F.3d 91 (1st Cir. 2013), supports its "settled"
common law definition of malice. To the contrary, Hernandez-Cuevas
recognized that "[c]ommon law malice standards vary by jurisdiction
and context." 723 F.3d at 102 n.11.

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matter should be considered together so that they will harmonize

with each other and be consistent with their general objective

scope." Rathbun v. Autozone, Inc., 361 F.3d 62, 68 (1st Cir. 2004)

(internal quotation marks omitted). We should construe 18 U.S.C.

§ 35(b) and 49 U.S.C. § 46507(1) in pari materia because they

proscribe the same conduct and are very similarly worded. See

United States v. Cothran, 286 F.3d 173, 178 (3d Cir. 2002) (stating

that "§ 35(b)'s language closely tracks that of 49 U.S.C. §

46507").

Finally, to the extent the definition of malice under §

46507(1) may be ambiguous, "the rule of lenity requires ambiguous

criminal laws to be interpreted in favor of the defendants

subjected to them." United States v. Santos, 553 U.S. 507, 514

(2008) (applying the rule of lenity to adopt the defendant's

proposed definition of "proceeds" in a statute as "profits").

Because Sand's definition raises the bar for the government, it

favors the defendant. We hold that Gray's proposed instruction,

from Sand, defining malice in the context of § 46507(1) as "to do

something with an evil purpose or motive," is the appropriate

definition.

Having determined that Gray's proffered definition was

legally correct, we do not stop there. Had the district court

allowed its original definition to stand, we wouldn't be here. But

alas, the court amended its definition to include "or improper

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motive." Because "the district court has considerable discretion

in how it . . . words its jury instructions," United States v.

Gonzalez, 570 F.3d 16, 21 (1st Cir. 2009), we must now determine

whether the instruction given conveyed the correct definition of

malice, or if, as Gray contends, it diluted the meaning of the

word.11

The government argues the three words are close enough to

Gray's requested definition because they "conveyed the same

meaning." Because jury instructions demand somewhat greater

precision than that required by horseshoes and hand grenades, we'll

assess this argument to see if the court's definition of malice was

correct or merely close, but no cigar.

The government claims that "[t]he word 'improper'

imparted a sense of deliberate wrongfulness above and beyond a

reckless disregard for the law, which is precisely the idea

conveyed by Gray's requested 'evil purpose or motive' instruction."

We must disagree. The word improper carries several meanings, not

one of which is the equal of evil.12 The universe of things that

11
Although this is the first time the definition of malice has
been addressed within the context of § 46507, our sister circuits
have addressed incorrect definitions of malice in the context of
homicide, and have granted relief where the definition offered by
the court impermissibly lowered the standard or shifted the burden
of proof to the defendant. See Caldwell v. Bell, 288 F.3d 838, 844
(6th Cir. 2002); United States v. Wharton, 433 F.2d 451, 456 (D.C.
Cir. 1970).
12
Improper has been defined as "[i]ncorrect; unsuitable or
irregular," Black's Law Dictionary 761 (7th ed. 1999); "not in

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are considered improper would encompass anything from wearing a hat

indoors to filing a frivolous lawsuit. Evil, on the other hand, is

more commonly used to describe something that is morally

reprehensible. It should go without saying that the words are not

interchangeable.

We faced a similar situation in United States v. Tobin,

480 F.3d 53, 55-56 (1st Cir. 2007). In Tobin, we addressed a jury

instruction that defined "harassment" in the context of telephone

calls as using the phone "in a way that is not meant as a good

faith effort to communicate . . . and is done with an unjustifiable

motive." Id. at 55. We held that "[t]he district court's 'bad

faith-improper motive' instruction" would include the charged

conduct (harassing phone calls), but "would also include almost

anything else of which the jury might disapprove." Id. at 57. The

same danger exists here. The court's definition allowed the jury

to convict Gray if it found that she was improperly motivated by

something it frowned upon. This diluted the willful and malicious

element, and lowered the government's burden considerably.

Notably, it resulted in a standard lower than the "willful

disregard" instruction proposed by the government.

accordance with truth, fact, reason, or rule; abnormal, irregular;
incorrect, inaccurate, erroneous, wrong," Oxford English
Dictionary, available at http://www.oed.com/view/Entry/92817; and
"not in accord with propriety, modesty, good manners, or good
taste," Merriam-Webster Online Dictionary, http://www.merriam-
webster.com/dictionary/improper.

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 The district court's instruction was not nearly close

enough. Instead, its definition diluted the meaning of malice to

an impermissibly low standard.13

C. Harmless Error

Our analysis does not end with the determination that the

instruction was erroneous. "Even an incorrect instruction to which

an objection has been preserved will not require us to set aside a

verdict if the error is harmless." Sasso, 695 F.3d at 29. We

employ "two barometers for measuring harmless error in a criminal

case." Id. Issues of a constitutional dimension require the

government to "prove beyond a reasonable doubt that the error did

not influence the verdict." Id. (quoting Chapman v. California,

386 U.S. 18, 23-24 (1967)). If, however, the error is found to be

of a non-constitutional dimension, a less stringent standard

applies to allow a conviction to stand "as long as it can be said

'with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.'" Id. (quoting

Kotteakos v. United States, 328 U.S. 750, 765 (1946)).

13
Section 46507 prohibits giving false information about a bomb
threat "willfully and maliciously or with reckless disregard for
the safety of human life" (emphasis added). This disjunctive
phrasing provides two bases for conviction -- the jury could have
found that Gray had not acted willfully and maliciously, but had
acted recklessly. However, where "one of the possible bases of
conviction was legally erroneous" and "it is impossible to tell
which ground the jury selected," we must set aside the verdict.
United States v. Nieves-Burgos, 62 F.3d 431, 436 (1st Cir. 1995).

-22-
 Although Gray characterizes the incorrect jury

instruction as depriving her of a fundamentally fair trial, she

offers us no more than that. She does not present a constitutional

argument, does not even hint at a standard of review for harmless

error, does not address the question of prejudice, and seems to ask

us to simply presume prejudice from the erroneous instruction.

Similarly, the government provides us with no harmless error

analysis.

As for what standard of review to apply, Sasso provides

guidance. 695 F.3d at 30. The court in Sasso had erred by

offering the jury a definition of "willfully" that diluted the

level of scienter required by the statute under which the defendant

had been charged. Id. In that case, we determined that the error

was of the non-constitutional variety, requiring us to apply the

less stringent standard to determine whether the judgment was

"substantially swayed by the error." Id. at 29 (quoting Kotteakos,

328 U.S. at 765). We will do the same here.

In reviewing the record, arguably the only evidence of

malice was the statement in the confession: "I did it more to get

the ground workers in trouble than cause what I did," and the

testimony of Flight Attendant Hyde that Gray told her that she was

upset with American Airlines and would "Get back at them." The

jury could have considered the full text of the confession, which

included Gray's statement that she "care[d] deeply about AA, crew

-23-
& the passengers," and concluded that she may have intended some

benign mischief toward a co-worker, rather than intending behavior

evidencing evil intent. As to Hyde's testimony, the jury could

have weighed her damning statement on the stand, and contrasted it

with the more innocuous account she gave immediately following the

incident to conclude that Gray bore no evil intent. Yet the jury

could reasonably have deemed these intentions as improper. We

therefore cannot say with fair assurance that the judgment was not

substantially swayed by the error.

The government had the burden of proving that Gray wrote

the bomb threat willfully and maliciously. The proof of motive was

less than compelling, and Gray's motivation was debatable. The

court's incorrect definition of malice -- "evil purpose or improper

motive" -- impermissibly diluted the standard and introduced "too

great a likelihood that the instructional error may have influenced

the verdict." Sasso, 695 F.3d at 31. Our review of the record

convinces us that the error was not harmless.

CONCLUSION

The district court's jury instruction was erroneous, and

Gray was prejudiced by the likelihood that the diluted standard may

have influenced the verdict. Consequently, we vacate the

conviction and remand for a new trial in accordance with this

opinion.

-Dissenting Opinion Follows-

-24-
 HOWARD, Circuit Judge, dissenting. When a federal

statute incorporates a term that has accumulated a settled common

law meaning, we "must infer, unless the statute otherwise dictates,

that Congress means to incorporate" that term's "established

meaning." Neder v. United States, 527 U.S. 1, 21 (1999) (citation

omitted). That command is complicated in this case because, like

words, "[m]alice is a rather slippery concept." Carson v. United

States, 556 A.2d 1076, 1079 (D.C. 1989). Courts have not always

been consistent in describing malice's common law definition. But

the discord that may have been bred by a few decisions ought not

distract us from adhering to an established maxim of statutory

interpretation. In this case, the district court's instructions

comported with the settled common law definition of malice. I

respectfully dissent because I think that the majority endorses a

truncated definition of malice that leads it to unnecessarily look

beyond the common law meaning and find error.

The majority accepts a definition of malice provided by

the Fourth and Eighth Circuits as the settled common law meaning.

Under that definition, the majority contends, to act maliciously

means, simply, to act "intentionally." Maj. Op. at 15-16. Yet, as

substantial authority demonstrates, that definition is, at best,

incomplete. "Malice is not satisfied simply by [acting] with an

intentional or reckless mental state." United States v. Serawop,

410 F.3d 656, 664 (10th Cir. 2005). Instead, the settled common

-25-
law definition of malice "specifically requires committing the

wrongful act without justification, excuse, or mitigation." Id.

(emphasis added); accord Black's Law Dictionary 1100 (10th ed.

2014) (defining malice as the "intent, without justification or

excuse, to commit a wrongful act"). We have previously

acknowledged this precise definition, including its requirement of

more than a mere intentional action. See Hernandez-Cuevas v.

Taylor, 723 F.3d 91, 102 n.11 (1st Cir. 2013).

Other circuits have also endorsed this unabridged common

law definition when construing Congress's use of the term malice in

federal statutes. In Serawop, for example, the Tenth Circuit

adopted this meaning for purposes of the federal manslaughter

statute, 18 U.S.C. § 1112. See 410 F.3d at 664. The Ninth

Circuit, too, has applied this common law definition to certain

federal statutes. See United States v. Kelly, 676 F.3d 912, 918

(9th Cir. 2012) (construing statute criminalizing willful and

malicious destruction of maritime property, codified at 18 U.S.C.

§ 1363); United States v. Doe, 136 F.3d 631, 634-35 (9th Cir. 1998)

(construing arson statute, codified at 18 U.S.C. § 81).

This definition's common law pedigree is further

confirmed by its repeated invocation in the decisions of several

state courts and the District of Columbia, as well as in various

treatises. See, e.g., McGee v. State, 162 P.3d 1251, 1258 & n.32

(Alaska 2007) (defining malice as the "the intentional commission

-26-
of 'an unlawful act without justification or other legal excuse'");

Carson, 556 A.2d at 1079 (adopting definition that includes "the

absence of all elements of justification, excuse or recognized

mitigation" when construing a cruelty to children statute); Dean v.

State, 668 P.2d 639, 643 (Wyo. 1983) (defining malice as "that

state of mind which actuates conduct injurious to others without

lawful reason, cause or excuse"); Commonwealth v. York, 50 Mass. (9

Met.) 93, 105 (1845) (defining malice "in its legal sense" as

meaning "a wrongful act, done intentionally, without just cause or

excuse"); Am. Jur. 2d Criminal Law § 129 (2008) ("Malice, in its

legal sense, denotes that condition of mind manifested by

intentionally doing a wrongful act without just cause or excuse.");

Rollin M. Perkins & Ronald N. Boyce, Criminal Law 857 (3d ed. 1982)

("[I]n the absence of justification, excuse or recognized

mitigation, it is malicious to intend to do what constitutes the

actus reus of the crime in question.").

As pertinent here, the federal statute that Gray was

charged with violating proscribes making a false bomb threat

"willfully and maliciously" while "knowing the information to be

false." 49 U.S.C. § 46507(1) (emphasis added). By including

"maliciously," Congress indicated that the government must prove,

beyond a reasonable doubt, that a defendant acted without a

cognizable justification, excuse, or mitigating motivation.

Serawop, 410 F.3d at 664 & n.5. Indeed, the Supreme Court has

-27-
distinguished mens rea elements like "knowingly" and "willfully" --

where the government need not disprove the existence of excuses or

justifications -- from "malice" where "the nature of the mens rea

would require the Government to disprove the existence" of those

justifications "beyond a reasonable doubt." Dixon v. United

States, 548 U.S. 1, 6 & n.4 (2006). We, too, have recognized that

where malice is included as an element of an offense, the

government must prove the absence of any justification "beyond a

reasonable doubt."14 Gagne v. Meachum, 602 F.2d 471, 472-73 (1st

Cir. 1979).

Properly viewed, then, the common law definition of

malice is not the truncated one supplied by the cases the majority

relies on.15 To be sure, to act maliciously a defendant must act

14
And the majority's concern that adopting the actual common
law definition does not adequately give effect to the distinct mens
rea of "willfully," see Maj. Op. at 16-17, is misplaced. To act
"willfully" means to act intentionally; in other words, one acts
"willfully" when she acts deliberately rather than inadvertently or
mistakenly. But one acts "maliciously" -- without justification or
excuse -- when she acts without a valid reason, even if she acts
intentionally and not out of mistake or inadvertence. For example,
under the settled common law definition one might argue that a
defendant who makes a knowingly false bomb threat in an effort to
obtain help from law enforcement while being held hostage acts
"willfully" (i.e., on purpose) but not "maliciously" (because she
does so justifiably).
15
As I have explained, I find the reasoning of those circuits
that have embraced this truncated definition unpersuasive. The
majority cites to a recent Seventh Circuit case, United States v.
Grady, 746 F.3d 846 (7th Cir. 2014), as proof that there is no "one
size fits all" common law definition of malice. See Maj. Op. at
18. Yet, Grady relies on cases that have endorsed the very
decisions I find unpersuasive. See, e.g., United States v.

-28-
"intentionally or with willful disregard." Maj. Op. at 11. But an

instruction requiring the government to prove that the defendant

acted merely intentionally, without more, is incomplete. See Wade

v. State, 368 S.E.2d 482, 488 (Ga. 1988) (finding error where

malice instruction excluded element that the defendant acted

"without justification or serious provocation" because the

instruction "by its incompleteness, removed from the prosecution

the burden of proving every element of the crime . . . beyond a

reasonable doubt" (citation omitted)).

Thus, the Fourth Circuit's discovery of a redundancy in

an analogous statute, the Bomb Hoax Act, rests on a flawed premise.

See United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000)

("[I]f 'maliciously' simply meant 'intentionally,' there would seem

to be a redundancy."). The majority's reliance on Hassouneh to

drive its analysis of the statute in this case similarly leads it

astray. Having found malice at common law to require only an

Gullett, 75 F.3d 941, 947 (4th Cir. 1996) (citing United States v.
Sweet, 985 F.3d 443, 445 (8th Cir. 1993)). And, in any event, I do
not read Grady to provide the categorical rejection of the phrase
"without just cause or reason" the majority opinion portends.
Instead, the Seventh Circuit equivocated on the common law
definition in some respect. The court noted that, in the specific
case before it, "the district court's decision to omit the 'without
just cause or reason' language from the instruction" was
nevertheless "well-supported by the record" because "Grady ha[d]
failed to point to any cognizable legal justification for starting
the fire." Grady, 746 F.3d at 849. The court concluded, thus,
that "[t]here was simply no legal basis to include the phrase and
the district court acted well within its discretion in omitting
it." Id.

-29-
intentional action, the majority then resolves that it must define

malice as "evil purpose or motive" for purposes of 49 U.S.C. §

46507(1) in order to avoid creating indistinguishable civil and

criminal prohibitions.16 Yet, because common law malice requires

the government to make an additional showing that the defendant

acted "without justification, excuse, or mitigation," employing the

common law definition in § 46507(1) will create no redundancy that

requires us to look beyond the common law.

To support its conclusion, the majority also invokes a

single stray remark by the Attorney General at the time that an

analogous statute, the Bomb Hoax Act, was amended. Yet, the

16
The majority describes an additional "redundancy" not
identified in Hassouneh, claiming that if "maliciously" meant
intentionally, there would be a redundancy within § 46507(1). As
an initial matter, this observation further supports my contrary
conclusion that malice, under the common law, does not mean
"intentionally." Because federal and state statutes frequently
pair the terms "willful" and "malicious," it is hard to believe
that courts and legislatures have long made use of redundant words
when defining criminal and civil prohibitions. See, e.g., 10
U.S.C. § 926; 18 U.S.C., §§ 1363, 1368, 1991; Me. Rev. Stat. tit.
17, §§ 2401, 2402; Mass Gen. Laws ch. 266, §§ 1, 12 112, 129; N.H.
Rev. Stat. Ann. §§ 154:13, 270:26-a, 384:22-a; R.I. Gen. Laws §§
11-35-4, 11-36-9, 11-44-8, 11-44-31.
Second, even accepting the majority's observation as fact, the
majority seems to claim that such a redundancy internal to §
46507(1) somehow creates a problem vis-à-vis the civil penalty.
Yet, that civil penalty, of course, requires neither "willful" nor
"malicious" action, see 49 U.S.C. § 46302, and the legislative
history the majority cites indicates that Congress thought deleting
the term "willful" from the civil penalty in the analogous Bomb
Hoax Act made a difference, see Maj. Op. at 13. Thus, even if
"willful" and "malicious" meant the same thing under the common law
-- which they do not -- any redundancy within § 46507(1) still
creates no overlap with § 46302 that would necessitate looking
beyond the common law for a definition of "malice."

-30-
Supreme Court has consistently instructed that the grounds for

inferring any alternative intent by Congress must come from the

face of the statute, the definitions the statute provides, and any

other, related provisions. See, e.g., Neder, 527 U.S. at 24 n.7

(noting that "rebuttal" of a common law meaning "can only come from

the text or structure of the . . . statutes themselves");

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992)

(noting that "a court must infer, unless the statute otherwise

dictates" that Congress intends to apply the common law meaning,

finding ERISA's statutory definition of "employee" "completely

circular," and then applying the settled common law definition

because in "the rest of the Act" the Court found no "provision

either giving specific guidance on the term's meaning or suggesting

that [applying the common law meaning] would thwart the

congressional design or lead to absurd results" (emphasis added)).

Congress chose to employ the term "maliciously" in § 46507(1) but

provided no definition of that term in the statute. Presumably

Congress was aware that "malice" had a settled and storied meaning

under the common law. Thus, absent the majority's illusory

"redundancy" or any other indication in the statute to depart from

the settled common law meaning, there is no need or justification

to look to the legislative history.

Moreover, I am not convinced that the Attorney General's

passing use of the phrase "evil or reckless motive," even if

-31-
relevant, can bear the weight the majority places on it. It is not

at all clear that the Attorney General's informal account of the

practical realities that necessitated a change to the Bomb Hoax Act

was intended to describe the full reach of the term "willfully and

maliciously" as used in the statute. We should give Congress the

benefit of the term it actually chose to employ, but left

undefined, even if that term reaches father than the situations the

Attorney General described. And it is worth noting that malice, in

the legal sense, has never required a showing of "hatred, spite,

grudge, or ill-will." Kelly, 676 F.3d at 918 (quoting Perkins &

Boyce, supra, at 857); accord Black's, supra, at 1100 (noting that

defining malice as "[i]ll will" or "wickedness of heart" is "most

typical in non-legal contexts").

Thus, contrary to the majority, I conclude that the

settled common law definition, requiring a two-pronged showing that

the defendant intentionally committed a "wrongful act" and did so

"without justification, excuse, or mitigation," Serawop, 410 F.3d

at 664, is the one Congress intended us to apply in § 46507(1).17

And the district court's instructions below comported with that

settled common law meaning. Although perhaps not perfect, the

district court's charge that the jury must find Gray "d[id]

17
An intent to do the wrongful act may not always be
necessary, either. An act might, instead, be done with sufficient
disregard for the foreseeable harm that is likely to result such
that it is considered malicious. See Kelly, 676 F.3d at 918 n.6;
Charles v. United States, 371 A.2d 404, 411 (D.C. 1977).

-32-
something that is knowingly wrong" with an "evil purpose or

improper motive" adequately conveyed the common law definition of

malice. I do not see how the district court's inclusion of the

word "improper" the second time that it provided the instruction --

such that the jury might have found malice if it concluded Gray had

an "evil purpose" or an "improper motive" -- in any way watered

down the government's burden under the statute.18 An "improper"

motive or purpose equates with a lack of justification or excuse;

in other words, having a justification or excuse for making a false

bomb threat would perhaps supply a proper purpose or motive. And,

I am less troubled than the majority appears to be that, by

concluding a defendant acts maliciously when she has an improper

motive, we will sweep in the entire "universe of things that are

considered improper," such as "wearing a hat indoors." Maj. Op. at

20-21. To find malice, the jury always must conclude that the

defendant has also taken an intentional, wrongful action

(presumably one that has been statutorily proscribed).

Gray's confession conclusively demonstrates that she

acted intentionally, knowing her action was wrong, and without any

justification, excuse, or mitigation. She admitted to making the

18
Although used in a civil, not criminal, context, I find it
particularly informative that the term "improper motive" explicitly
has been used to describe the showing of malice necessary for torts
like malicious prosecution. See Smith v. Wade, 461 U.S. 30, 53
(1983) (noting that malicious prosecution requires a showing of
"improper motive" of the tortfeasor); id. at 60 n.3, 78 n.12
(Rehnquist, J., dissenting) (noting the same and collecting cases).

-33-
bomb threat in the hopes of getting ground workers in trouble and

she stipulated that she was aware that an American Airlines flight

had been grounded previously due to a similar bomb threat found in

an airplane lavatory. It sets the bar far too high to require the

government to show that a defendant harbored an "evil intent" --

against her airline employer or anyone else -- in order to

prosecute that individual for making a false bomb threat that

necessitated the grounding and evacuation of an aircraft and the

response of emergency personnel. Indeed, whatever the proper

common law definition of malice, one would think that making a

false bomb threat merely to cause some "benign mischief" for a co-

worker is sufficiently malicious to sustain Gray's conviction. Cf.

Doe, 136 F.3d at 635 n.4 ("'An intentional act creating an obvious

fire hazard to the dwelling of another, done without

justification . . . would certainly be malicious.'" (quoting

Perkins & Boyce, supra, at 275)).

To its credit, the majority's opinion provides a clear

definition of malice in the context of 49 U.S.C. § 46507(1) for the

district court to apply on remand. In the face of some disagreement

among courts, such clarity is admirable. But where we can properly

discern the settled common law definition, we must assume Congress

incorporated it and then faithfully apply it. If Congress wishes

to depart from that common law meaning it can clarify its use of

the term in this or a future statute. Because there is no

-34-
indication in the statute that Congress intended to do so here,

however, and since the common law definition is sufficiently clear,

I respectfully dissent.

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