United States v. James T. Tabacca

Tabacca was convicted for interfering with a flight attendant under 49 U.S.C.App. § 1472®.

Tabacca asserts the District Court erred both in denying his Motions for Judgment of Acquittal and in refusing to give a requested jury instruction. Tabacca also argues that 49 U.S.C.App. § 1472(j) is unconstitutionally vague. Finally, Tabacca asserts the District Court abused its discretion by dismissing an absent juror after the commencement of deliberations.

The decisions of the District Court as to the Motions for Judgment of Acquittal and the requested jury instruction are AFFIRMED. This panel does not find 49 U.S. C.App. § 1472(j) to be unconstitutionally vague. Finally, the dismissal of the absent juror after deliberations had begun was an abuse of discretion; therefore this case is REMANDED for a new trial.

Statement of Facts

On December 30, 1987, Tabacca was a passenger on a flight from Boston to Los Angeles. Tabacca is a smoker and was assigned to a seat where smoking initially was to be permitted. Subsequently, however, because of the cancellation of another flight, there was an unusually large demand for non-smoking seats on Tabacca’s flight. Due to federal regulations which…