UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 98-4403

BOBBY PELFREY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-488)

Submitted: October 30, 1998

Decided: November 23, 1998

Before WILKINS and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Dale Warren Dover, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Michael E. Rich, Assistant United
States Attorney, Heather R. Epstein, Special Assistant 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Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

Bobby Pelfrey appeals his conviction for one count of interfering
with a flight attendant, 49 U.S.C. § 46504 (1994), and one count of
assault in special aircraft jurisdiction, 49 U.S.C.§ 46506 (1994). Pel-
frey contends the court erred in denying his motion for a judgment of
acquittal and in imposing a two-level enhancement to his Sentencing
Guidelines' offense level for obstruction of justice. Finding no revers-
ible error, we affirm.

Taken in the light most favorable to the Government, see United
States v. Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997) (No.
96-6868), the evidence at Pelfrey's trial established the following
facts. In December 1997, Pelfrey was on board a transatlantic Luft-
hansa flight originating in Frankfurt, Germany, and scheduled to
arrive at Dulles International Airport. Flight attendant Monika
Zachariae served Pelfrey three beers and three double whiskeys dur-
ing the nearly seven hour flight. She also sold him a bottle of Johnnie
Walker Black Label from the duty free cart.

An hour before landing, Pelfrey entered the lavatory. After he
exited, Zachariae noticed a large cloud of smoke in the lavatory and
asked Pelfrey if he had been smoking in the lavatory. He ignored her
question, pushed her aside, and proceeded to his seat. Zachariae con-
tacted the purser, Hans Peter Grabow, and they approached Pelfrey.
Grabow smelled cigarette smoke and noticed that Pelfrey was drunk.
Grabow told Pelfrey that it was illegal to smoke on the airplane.

Grabow and Zachariae spoke privately. Zachariae told Grabow of
the drinks Pelfrey consumed and of the duty free liquor purchase.
Grabow returned to Pelfrey and, after a slight struggle, took the duty
free liquor bottle from him; he observed that the bottle was open and

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missing some of its contents. Because it is illegal to drink duty free
liquor purchases during flight, Grabow confiscated the liquor bottle.

Shortly thereafter, the plane began its descent, and the fasten seat
belt light illuminated. Zachariae began preparations for landing and
passed Pelfrey's seat to confirm his seat belt was fastened. Pelfrey
jumped into the aisle and demanded to speak with Grabow. Zachariae
instructed Pelfrey to sit down and to fasten his seat belt. Pelfrey
grabbed her by the upper arms and shook her violently. Zachariae
struggled to break free, as she knew that the plane was about to land
and that she needed to assume her landing duty position. Zachariae
was unable to perform the mental checklist flight attendants are obli-
gated to review prior to landing. She suffered black and blue marks
and fingernail marks on her upper arm.

Pelfrey testified in his own defense at trial. He admitted that he was
drunk during the flight. However, he denied demanding to speak to
the purser or grabbing or kicking Zachariae. At the close of the Gov-
ernment's case, Pelfrey moved for a judgment of acquittal, contend-
ing that there was little evidence he interfered with Zachariae's duties.
The motion was denied.

In relevant part, § 46504 states that "[A]n individual on an aircraft
in the special aircraft jurisdiction of the United States who, by assault-
ing or intimidating a flight crew member or flight attendant of the air-
craft, 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."

Pelfrey contends that the legislative history of the statute shows it
was intended only to punish conduct that interferes with the safety of
the aircraft. This was not an issue raised in the district court, and
accordingly, we review only for plain error. Pelfrey must show that:
(1) an error occurred; (2) which was plain; and (3) which affected
substantial rights. Even if Pelfrey successfully identifies error, we will
correct the error only if it seriously affected the fairness, integrity, or
public reputation of judicial proceedings. See United States v. Romer,
148 F.3d 359, 367 (4th Cir. 1998).

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Pelfrey fails to identify any error. It is well established that the first
step in interpreting a statute is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the partic-
ular dispute in the case. The inquiry ceases if the statutory language
is unambiguous and the scheme coherent and consistent. See
Robinson v. Shell Oil Co., 519 U.S. 337 (1997). There is no support
in the statute for Pelfrey's contention that an element of the statute
includes showing that the defendant interfered with the safety of the
aircraft. See United States v. Tabacca, 924 F.2d 906 (9th Cir. 1991)
(interpreting the predecessor to § 46504, 49 U.S.C. App. § 1472(j),
and concluding that the safety of the aircraft need not be endangered).
As for the object of Pelfrey's interference, the statute merely requires
the Government to show beyond a reasonable doubt that Pelfrey inter-
fered with a flight attendant's duties. Because there was no error in
the interpretation of the statute, we decline review of this issue.

Pelfrey also contends that his motion for a judgment of acquittal
should have been granted because there was insufficient evidence to
support his conviction even if the safety of the aircraft was not a rele-
vant consideration. Specifically, Pelfrey argues that there was insuffi-
cient evidence that he interfered with Zachariae's"safety-related
duties" or "essential duties."

When a motion for judgment of acquittal is based on insufficiency
of the evidence, "the conviction must be sustained if the evidence,
when viewed in the light most favorable to the Government, is suffi-
cient for any rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt." Romer, 148 F.3d at 364.

We note that the statute does not require interfered-with-duties to
be essential or related to the safety of the airplane. Words that are not
defined within the statute are accorded their plain and ordinary mean-
ing. See Scrimgeour v. Internal Revenue, 149 F.3d 318, 327 (4th Cir.
1998). A duty is "[A]n act or a course of action required of one by
position." Webster's II New Riverside University Dictionary 411
(1994). Zachariae testified that Pelfrey's conduct interfered with her
getting in her proper seat position for landing and prevented her from
performing her mental checklist. She also testified that she was in
shock after the assault and could not recall any of the events on board
the plane until after it landed and reached its parking position.

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Because there was testimony that Pelfrey's conduct interfered with
Zachariae's duties, there was sufficient evidence to sustain the con-
viction and Pelfrey's contention is without merit.

Pelfrey contends that the court erred in imposing a two-level
enhancement to the offense level for obstruction of justice based upon
the finding that he gave false material testimony at trial. See U.S. Sen-
tencing Guidelines Manual § 3C1.1 (1997). A witness commits per-
jury if he: (1) gives false testimony; (2) concerning a material matter;
and (3) with the willful intent to deceive, rather than as a result of
confusion or mistake. See United States v. Smith , 62 F.3d 641, 646
(4th Cir. 1995). Once the defendant objects to an adjustment based
upon perjury, the district court "must review the evidence and make
independent findings necessary to establish a willful impediment to,
or obstruction of, justice, or an attempt to do the same, under the per-
jury definition. . . ." United States v. Dunnigan, 507 U.S. 87, 95
(1993).

Whether Pelfrey's conduct amounted to obstruction of justice is a
legal question which is reviewed de novo. See United States v. Saintil,
910 F.2d 1231, 1232 (4th Cir. 1990). The underlying factual findings
are reviewed for clear error. See United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989).

At sentencing, the court stated that:

           [T]he two-point enhancement is appropriate in this case,
          because the testimony of the defendant was not that his
          mind was clouded or he didn't think this had happened. It
          was a direct confrontation with Ms. Zachariae. He essen-
          tially called her a liar. He forced the jury to have to make
          a credibility finding.

           The trial testimony clearly included not just the victim,
          Ms. Zachariae, but enough direct confirming evidence from
          other witnesses that it was quite clear to the Court that Ms.
          Zachariae, the victim, was telling the truth and that Mr. Pel-
          frey was not, and therefore, I find that the obstruction
          enhancement is properly given in this case.

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           The law does not in any respect infringe on a defendant's
          right to go to trial. The guidelines are quite clear that there
          is no, no aspect of the guidelines in any way interfere with
          the defendant's right to trial, but if a defendant does go to
          trial, he does not have a right to give false testimony, and
          I find in this case that false testimony was given.

(J.A. at 234-35).

We conclude that the court's finding encompasses all necessary
factual predicates to support an offense-level enhancement for
obstruction of justice. The court found that Pelfrey was not confused
as to his recall of events, but willfully gave false testimony. It also
found that he directly contradicted Zachariae as to whether there was
any confrontation between him and her, physical or otherwise, during
the descent. This event was the focus of the charges against Pelfrey.
See United States v. Queen, 132 F.3d 991, 1000 (4th Cir. 1997) (it is
sufficient if court identifies that the defendant willfully testified
falsely to a material matter), cert. denied, ___ U.S. ___, 118 S. Ct.
1572 (1998).

Based on the foregoing, we affirm the convictions and sentences.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.

AFFIRMED

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