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Malice Requires an 'Evil Purpose,' Not Just an 'Improper Motive'

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By Mark Wilson, Esq. on March 17, 2015 2:19 PM

"[T]he district court's definition just won't fly," Judge O. Rogeriee Thompson wrote in not even the first of several puns in a case about making a false report of a bomb threat on an airplane.

In a 2-1 split, a First Circuit panel reversed a former flight attendant's conviction for making false threats, finding the federal district court erred when it defined "malice" for the jury as not requiring an "evil purpose."

What a Bad Day

Nancy Gray, the former flight attendant in question, saw the message "Bomb on Board! BOS-MIA" written on the inside of a storage compartment door in an airplane lavatory during the plane's boarding process. She alerted the pilot, who ordered everyone off the plane. After a search that took several hours, no bomb was found.

Three months later, Gray met with an FBI agent who was investigating the incident and confessed that she wrote the message after having "been under extreme, stressful personal things in my life" and being yelled at by a member of the ground crew.

A federal jury convicted Gray of violating 49 USC Section 46507(1), "willfully and maliciously" making a false threat report. The prosecution and defense disagreed over the definition of "malice," which the First Circuit had never defined in terms of that statute. After much haranguing by both sides, the district court finally instructed the jury that malice "means to do something with an evil purpose or improper motive."

Go Ask Malice

On appeal, the First Circuit addressed only one of her several issues: What is "malice"? Though the First Circuit never addressed that issue, the Fourth Circuit did in interpreting a similar statute, and concluded that it required an "evil purpose or motive," period. Not just an improper motive, but an evil motive.

While the common law definition of "malicious" is to "act intentionally or with willful disregard of the likelihood that damage or injury would result," the First Circuit noted that Congress amended the Bomb Hoax Act in 1961 to create two separate penalties for making false bomb threats. One penalty proscribes merely conveying knowingly false information; the other prohibits conveying knowingly false information "willfully and maliciously." This separation evidenced Congress' intent to separate "prankster" cases from those where a person had an "evil purpose or motive."

Though the government said the "evil purpose" and "improper motive" language was close enough to the meaning Gray wanted to convey, that still didn't convince the majority, which said that "jury instructions demand somewhat greater precision than that required by horseshoes and hand grenades." The First Circuit ultimately remanded the case for a new trial.

Dissent: Congress Wasn't Clear Enough

Judge Jeffrey Howard dissented, unconvinced by the majority's argument that the common law definition of malice shouldn't apply. Howard's dissent sets the stage for a cert. petition to the Supreme Court, as he points out there's a split on using "this unabridged common law definition when construing Congress's use of the term malice in federal statutes."

Sure, if Congress intends to depart from a common law definition it has to say so, but Howard didn't believe Congress sufficiently telegraphed that intention, and as a result, Howard thought the conviction should stand.

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