             United States Court of Appeals
                        For the First Circuit

No. 11-1094

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                             GERARD SASSO,

                         Defendant, Appellant.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]


                                Before

                         Boudin, Selya and Dyk,*
                            Circuit Judges.



     Rheba Rutkowski, Assistant Federal Public Defender, for
appellant.
     William D. Weinreb, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.



                          September 17, 2012




     *
         Of the Federal Circuit, sitting by designation.
           SELYA, Circuit Judge.    The government charged defendant-

appellant Gerard Sasso with one count of interfering with the

operation of an aircraft with reckless disregard for human life and

one count of making false statements.     See 18 U.S.C. §§ 32(a)(5),

1001. After a four-day trial, a jury found the defendant guilty as

charged.     The defendant was sentenced to serve three years in

prison.    On appeal, the defendant raises a gallimaufry of issues,

only two of which need be discussed.

           We begin with the defendant's plaint that the district

court should have granted his motion for a judgment of acquittal

because the evidence did not suffice to support his conviction

under 18 U.S.C. § 32(a)(5).    See Fed. R. Crim. P. 29.   We review de

novo the denial of a Rule 29 motion.          See United States v.

Dwinells, 508 F.3d 63, 72 (1st Cir. 2007).    In determining whether

the evidence suffices to sustain a conviction, we take the facts

and all reasonable inferences therefrom in the light most favorable

to the jury verdict.    United States v. Walker, 665 F.3d 212, 224

(1st Cir. 2011).   The verdict must stand unless the evidence is so

exiguous that no rational jury could conclude that the government

proved all the essential elements of the offense of conviction

beyond a reasonable doubt.    United States v. Rodríguez-Vélez, 597

F.3d 32, 39 (1st Cir. 2010).

           The evidence, taken agreeably to the verdict, reveals the

following.    On the night of December 8, 2007, two members of the


                                   -2-
Massachusetts State Police (Lieutenant Timothy Riley and Trooper

Michael Basteri) flew a helicopter escort of a liquefied natural

gas tanker as it traversed Boston Harbor en route to a facility in

Everett, Massachusetts.   At about 9:00 p.m. (as the helicopter was

flying over the Mystic River), the troopers noticed a bright green

light two to three miles to the northwest.      Basteri recognized the

green light as a laser beam and warned Riley (the pilot) not to

look at it.    Riley swerved to avoid direct contact, but the laser

beam hit the aircraft, filling the cockpit with bright green light.

          The troopers elected to abandon their escort mission in

order to track down the source of the laser beam.         As they flew

toward their quarry in a zigzag pattern, the beam struck the

helicopter several times.      The final strike occurred when the

helicopter was approximately half a mile away from the source.

          The troopers determined that the laser beam was emanating

from the third floor of a triple-decker house on the Medford-

Somerville    border.   They   radioed   this   information   to   police

officers on the ground.    Medford police, including Sergeant Jack

Buckley, responded and knocked on the door of the defendant's

third-floor tenement at 590 Main Street.

          When the defendant answered the knock, the officers told

him that they were investigating a laser strike on a helicopter.

The defendant denied any involvement in the incident and said that




                                  -3-
he had no lasers or laser-like instruments in his abode.                   He

invited the officers to look around, which they did.

          The   officers    pressed     the   question    of    whether   the

defendant possessed any lasers, and he eventually admitted that he

had a small keychain laser.    He nevertheless continued to maintain

that he did not possess any other lasers.             By like token, he

denied any involvement in the helicopter incident.

          Buckley    then   noticed     an    item   on   the    defendant's

nightstand that appeared to be a laser pointer.           When asked about

the artifact, the defendant began to backtrack.                 According to

Buckley, the defendant said, "I did it.        It was me," and added that

he was sorry and did not mean to cause all the commotion.                 The

defendant explained that he had a penchant for stargazing, and that

when he saw the helicopter he decided to "light it up."              When he

heard the helicopter directly overhead, he "got scared" and hid the

laser that he had pointed at the helicopter in a baseboard heater.

          Buckley retrieved the hidden laser, which had a label

reading "DANGER laser radiation, avoid direct eye exposure, laser

diode, wavelength 532nm, max output 240mw."          Asked if he owned any

other lasers, the defendant opened a bureau drawer containing nine

additional lasers.

          On June 18, 2008, the defendant was arrested and brought

to the federal courthouse in Boston. Special Agent Michael Ryan of

the Department of Homeland Security testified that during the ride


                                  -4-
the defendant "acknowledged that he had lased the helicopter and he

further provided that he didn't realize it was a Massachusetts

State Police helicopter until it was around his house."

            The     defendant   contends       that    this     evidence   was

insufficient to prove beyond a reasonable doubt that he had the

scienter required under 18 U.S.C. § 32(a)(5).               He argues that the

government failed to prove that he willfully interfered with the

operation of the helicopter with reckless disregard for the safety

of human life.        We disagree.      In our view, the evidence was

sufficient to convict.

            Drawing all plausible inferences in favor of the verdict,

a reasonable jury could have found — as this jury did — that the

government   proved    all   the    elements    of    the   offense   beyond   a

reasonable doubt.      The jurors heard testimony that the defendant

admitted that he had "noticed the helicopter and decided to light

it   up."    They    also   heard   testimony   that    notwithstanding     the

helicopter's zigzag flight path, the laser struck it repeatedly.

Based on this testimony, the jurors could reasonably infer that the

defendant intended all along to target the helicopter.                Given the

warning label on the laser, the jurors could further infer that the

defendant knew that aiming the laser at the helicopter might

interfere with its operation and thereby pose a risk to human life.

To cinch matters, an attempt to cover up the commission of a crime

implies consciousness of guilt.         See United States v. Gonsalves,


                                      -5-
668 F.2d 73, 75 (1st Cir. 1982); see also United States v. Vega

Molina, 407 F.3d 511, 530 (1st Cir. 2005) ("Consciousness of guilt

evidence is generally admissible in a criminal case.").   Here, the

jurors could reasonably infer consciousness of guilt (and, thus,

intent) from the defendant's endeavor to conceal his possession of

the laser that he had pointed at the helicopter.

          To say more about the Rule 29 claim of error would be

supererogatory.     On the facts of this case, it is clear that a

rational jury could conclude that the government satisfied its

burden of proving all the elements of the charged crime beyond a

reasonable doubt.     The motion for a judgment of acquittal was,

therefore, appropriately denied.

          The defendant's next assignment of error implicates the

same count of conviction.      He calumnizes the district court's

construction of the scienter requirement as reflected in both the

jury instructions and the verdict form.       The defendant fully

preserved these objections below.

          Preserved claims of instructional error are assessed on

appeal under a bifurcated framework.   DeCaro v. Hasbro, Inc., 580

F.3d 55, 61 (1st Cir. 2009).    We review de novo questions about

whether the instructions conveyed the essence of the applicable law

and review for abuse of discretion questions about whether the

court's choice of language was unfairly prejudicial.   Id.   In this

instance, the claim of instructional error involves the district


                                -6-
court's interpretation of the scienter element of section 32(a)(5),

engendering de novo review. See United States v. Pitrone, 115 F.3d

1,   4   (1st    Cir.    1997)   (explaining    that   when    a   claimed   error

"involves       the   interpretation     of   the   elements    of    a   statutory

offense, it poses a question of law" and engenders de novo review).

            We hasten to add a caveat. 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.               See United States v.

Argentine, 814 F.2d 783, 788-89 (1st Cir. 1987).                     There are two

barometers for measuring harmless error in a criminal case.                      The

stricter standard, applicable mainly to issues of constitutional

dimension, requires the government to prove beyond a reasonable

doubt that the error did not influence the verdict. See Chapman v.

California, 386 U.S. 18, 23-24 (1967); Argentine, 814 F.2d at 789.

The less stringent standard, applicable mainly to trial errors that

are not of constitutional dimension, allows a conviction to stand,

error notwithstanding, 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."             Kotteakos v. United States,

328 U.S. 750, 765 (1946).              Here, we assume, favorably to the

government, that the less stringent Kotteakos standard applies.

            Section 32(a)(5) makes it a crime to:

            willfully . . . interfere[] with or disable[],
            with intent to endanger the safety of any

                                        -7-
           person or with a reckless disregard for            the
           safety of human life, anyone engaged in            the
           authorized operation of [an] aircraft or           any
           air   navigation  facility   aiding  in            the
           navigation of any such aircraft . . . .

With respect to the charge brought under this section, the court

instructed the jury as follows:

           Count 1 charges the defendant with a violation
           of a federal statute that makes it a crime for
           anyone acting with a reckless disregard for
           the safety of others to willfully interfere
           with persons operating an aircraft in the
           special aircraft jurisdiction of the United
           States.   In order for the defendant to be
           found guilty on Count 1, the government must
           prove each of the following elements beyond a
           reasonable doubt.

           First, the government must prove that the
           defendant willfully interfered with a person
           engaged in the authorized operation of an
           aircraft. To act "willfully" in this context
           means to act deliberately and intentionally,
           on purpose, as opposed to accidentally,
           carelessly or unintentionally. If a person's
           actions interfere with an aircraft operator,
           you may infer that the person acted willfully
           if his actions were deliberate and intentional
           and had the natural and probable effect of
           interfering with the aircraft operator.

           Second, the government must prove that the
           defendant acted with a reckless disregard for
           the safety of human life.    A defendant acts
           with a reckless disregard for the safety of
           human life if he is aware that his actions
           create a substantial and unjustifiable risk to
           the safety of human life and he consciously
           disregards that risk.

The defendant argues that this instruction erroneously diluted the

mens rea requirement of section 32(a)(5) by inviting the jury to

"infer   that   the   person   acted   willfully   if   his   actions   were

                                   -8-
deliberate and intentional and had the natural and probable effect

of interfering with the aircraft operator."

              We conclude that this claim of error is well-founded.

Reasonable jurors could understand from the quoted instruction that

it would be enough to convict the defendant if they found that he

deliberately pointed a laser in the helicopter's direction and

interference occurred as a natural and probable consequence of that

action, regardless of whether the defendant knew that interference

was a natural and probable effect of the action.                      So viewed, the

instruction did not adequately distinguish between negligently (but

innocently) pointing a laser at objects in the sky without any

intent   to    interfere   with     the    operation    of       an    aircraft   and

"willfully . . . interfer[ing]," which is the level of scienter

demanded by the plain text of the statute.

              The defendant not only objected to the misleading nature

of the court's instruction, but also proposed an instruction

designed to cure the defect.               While the court was under no

obligation to parrot the defendant's proposed jury instruction, see

United States v. McGill, 953 F.2d 10, 12 (1st Cir. 1992), it had an

obligation to put the scienter question fairly to the jury.                    Here,

the instruction given strayed from an even-handed statement of the

applicable law.

              In an effort to blunt the force of this reasoning, the

government     asseverates   that    the    charge     as    a    whole    correctly


                                      -9-
instructed the jury as to the required mens rea.                 In support, the

government points to the first part of the instruction on Count 1,

which stated that "the government must prove that the defendant

willfully interfered with a person engaged in the authorized

operation of an aircraft," and defined "willfully" as meaning

"deliberately     and    intentionally,        on    purpose,    as    opposed   to

accidentally, carelessly or unintentionally."

           We reject this asseveration.             While this language was on

track, the instruction was derailed by the subsequent sentence,

which   invited   the    jurors    to    infer      that   the   defendant   acted

willfully "if his actions were deliberate and intentional and had

the natural and probable effect of interfering with the aircraft

operator."

           This error was not harmless.              The defendant denied (or

attempted to explain away) the more damning admissions attributed

to him by the government's witnesses.                  The proof of scienter,

stripped of these admissions, was less than compelling. The upshot

is that the evidence of the defendant's guilt, though sufficient,

was not overwhelming.

           In   sum,    scienter    was    a   hotly       contested   and   fairly

debatable issue.        Viewing the record as a whole, we think that

there is too great a likelihood that the instructional error may

have influenced the verdict.             Consequently, we are required to

vacate the conviction on the section 32(a)(5) count and remand for


                                        -10-
a new trial.        See United States v. Pacheco, 434 F.3d 106, 117 (1st

Cir. 2006).

                 If more were needed — and we doubt that it is — the

district court used a shorthand in crafting the verdict form.                     On

the     form,      the   parenthetical      description     of   Count    1    read:

"Interfering with the Operation of an Aircraft with Reckless

Disregard for Human Life."               The defendant contends that because

this description omitted the word "willfully," it may have left

jurors with the misimpression that they could convict him if they

found that he interfered with the operation of the helicopter with

reckless disregard for the safety of human life, regardless of

whether that interference was willful.                  This contention has some

bite:      the    omission    of   the    term   "willfully,"    though       perhaps

unimportant had it been coupled with a more precise instruction

concerning scienter, reinforces our conclusion that the court's

instructional error was likely to have influenced the verdict.

                 We need not tarry over the defendant's other claims of

error.          Because the defendant's conviction on Count 1 must be

vacated, a new trial will be required.              We are loath to speculate

about how that new trial will proceed.              For this reason, we think

that       it    would   be   imprudent    to    rule    gratuitously    upon     the

defendant's remaining assignments of trial and sentencing error.1


       1
       These claims of error include an objection to the district
court's refusal to permit a view, complaints about the court's
exclusion of certain evidence, and a contention that the sentence

                                          -11-
              One loose end remains.       The defendant does not challenge

his conviction on Count 2 for making false statements.                        See 18

U.S.C. § 1001.      That conviction must stand.           But there is a rub:

the record is tenebrous as to whether the district court intended

the three-year sentence to run concurrently on Count 2.2                      In all

events,     the   vacation   of    the    Count   1   conviction    changes      the

sentencing calculus with respect to Count 2 and requires that the

court sentence the defendant anew on Count 2.                See, e.g., United

States v. García-Ortiz, 657 F.3d 25, 31 (1st Cir. 2011); United

States v. Pimienta-Redondo, 874 F.2d 9, 14-16 (1st Cir. 1989) (en

banc).      We therefore affirm the section 1001 conviction but remand

to the district court for resentencing in due course.                   The timing

of   this    resentencing    is,    of    course,     committed    to   the    sound

discretion of the district court.

              We need go no further. For the reasons elucidated above,

we affirm the defendant's conviction under 18 U.S.C. § 1001, vacate

the defendant's conviction under 18 U.S.C. § 32(a)(5), and remand


imposed was both procedurally and substantively unreasonable. It
is unlikely that any of these claims will arise in the same posture
if the case is retried.
      2
       This opacity most likely results from the fact that Count 2
had no bearing on the combined offense level.       USSG §3D1.4(c)
directs the sentencing court to "[d]isregard any Group that is 9 or
more levels less serious than the Group with the highest offense
level. Such Groups will not increase the applicable offense level
. . . ." Here, the disparity between the offense level applicable
to the Count 1 Group and that applicable to the Count 2 Group
exceeded nine levels.      Thus, Count 2 did not increase the
applicable offense level.

                                         -12-
to the district court for further proceedings consistent with this

opinion.



Affirmed in part, vacated in part, and remanded.




                              -13-
