                   United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 13-2728
                          ___________________________

                               United States of America

                          lllllllllllllllllllll Plaintiff - Appellee

                                             v.

                                    Michael A. Smith

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                       for the District of Nebraska - Omaha
                                  ____________

                               Submitted: May 16, 2014
                                 Filed: June 27, 2014
                                    ____________

Before RILEY, Chief Judge, BEAM and SHEPHERD, Circuit Judges.
                              ____________

RILEY, Chief Judge.

       This case calls upon us to interpret 18 U.S.C. § 39A(a) for the first time. This
subsection imposes criminal liability on anyone who “knowingly aims the beam of a
laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or
at the flight path of such an aircraft.” 18 U.S.C § 39A(a). A jury convicted Michael
A. Smith of violating § 39A(a) after which the district court1 sentenced him to 24
months in prison and 3 years of supervised release. Smith challenges his conviction,
arguing the district court should have read § 39A(a) to provide Smith a mistake-of-
fact defense based upon his reasonable belief that his laser would not reach the
targeted aircraft. Claiming the word “aims” “carries with it an ‘intent to hit’ the
object,” Smith argues the district court erred in (1) excluding expert testimony as to
the perceived range of a laser, and (2) rejecting his defense instructions. Because we
do not read § 39A(a) to require an “intent to hit,” we affirm.2

I.     BACKGROUND
       A.     Factual Background
       In the early morning hours of July 11, 2012, authorities in Omaha, Nebraska,
learned the cockpit of an inbound Boeing 737 had been illuminated by a laser. The
local police department dispatched a helicopter to locate the laser. As the police
helicopter approached the approximate location of the laser’s source, Smith, standing
in his backyard, directed his laser pointer’s green beam at the helicopter, illuminating
its cockpit. Smith’s beam struck the helicopter several times, but when the helicopter
got close, his beam disappeared. Unable to pinpoint Smith’s location, the helicopter
was forced to depart. But as the helicopter began to do so, Smith again shone his
laser’s beam on the helicopter. The helicopter resumed its approach until, again, the
beam disappeared. In what the helicopter pilots described as a back-and-forth game
of “cat-and-mouse,” the helicopter approached Smith when the laser was visible and
feigned departure when it was not. Ultimately, the pilots were able to identify Smith’s
exact location and dispatched a ground officer.




      1
      The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
      2
       We have appellate jurisdiction under 28 U.S.C. § 1291.

                                          -2-
       The ground officer found Smith standing in his backyard pointing a green laser
pointer skyward in the direction of the helicopter. The officer handcuffed Smith and
removed him for questioning. According to the arresting officer’s testimony, Smith
“stated that earlier he had been shining [the laser] at aircraft that he thought were far
enough away that it wouldn’t actually reach those aircraft.” Smith “denied actually
shining [the laser] at the police” helicopter.

       B.    Procedural History
       A grand jury indicted Smith of knowingly aiming a laser pointer’s beam at the
police helicopter in violation of 18 U.S.C. § 39A(a). The day before trial, Smith
submitted proposed jury instructions, including a theory-of-defense instruction
proposing he could not have “‘knowingly’ aimed the beam at the aircraft” if he
“mistakenly believed that the laser beam could not travel the distance necessary to
reach the aircraft.”

       On the first day of trial, the parties asked the district court to provide its
preliminary interpretation of § 39A(a) and asked, in particular, whether the statute
required the government to prove Smith believed his laser’s beam would strike the
aircraft. The district court concluded, “[§] 39A is violated whenever a person points
a laser pointer at what the person knows to be an aircraft, regardless of that person’s
belief, whether it be reasonable or not, that the laser pointer will not reach the aircraft
or affect its crew.” First, the district court noted “the term ‘knowingly’ . . . clearly
applies to what the laser is pointed at”—that is, “the defendant has to know that he’s
aiming . . . a laser beam at an aircraft” as opposed to believing the target is “a shooting
star” or “a satellite.” The district court then reasoned the central question revolved
around the meaning of “knowingly aim.” The district court read “to aim at” as simply
meaning “to point[ ]at,” reasoning this definition was supported by the statutory text’s
common meaning, its legislative history, and the circumstances underlying the
statute’s enactment. Based on this interpretation, the district court ultimately refused
Smith’s proposed theory-of-defense instruction.

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        During the second day of trial, Smith called a physics professor, Dr. David
Sidebottom. Following the government’s objection, Dr. Sidebottom testified during
an offer of proof that a layer of atmosphere close to the ground contains dust which
reflects the laser’s beam. Dr. Sidebottom explained that once the beam clears this dust
layer, there can be fewer particles to reflect the laser, making it sometimes appear as
if the beam stops abruptly when it actually continues on. The district court excluded
Dr. Sidebottom’s testimony because under the district court’s interpretation of
§ 39A(a), it did not matter whether Smith believed—reasonable or not—that the beam
could reach the helicopter.

      The jury found Smith guilty of violating § 39A(a). Smith now appeals his
conviction.

II.    DISCUSSION
       Smith’s appeal targets the district court’s exclusion of Dr. Sidebottom’s
testimony and rejection of Smith’s proposed jury instructions. As both parties agree,
the foundation of these challenges and the crux of this appeal is the definition of the
phrase “knowingly aim.” Section 39A(a) covers an offender who “knowingly aims
the beam of a laser pointer at an aircraft . . . or at the flight path of such an aircraft.”
Smith contends this language requires a defendant to knowingly point a laser beam
intending the beam to strike the targeted object, whereas the government defends the
district court’s understanding by arguing an offender need only direct the beam
towards the target. We review de novo this question of statutory interpretation. See
United States v. Zaic, 744 F.3d 1040, 1042 (8th Cir. 2014).

       “As in all such cases, we begin by analyzing the statutory language,” Hardt v.
Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010), “giv[ing] words their
‘ordinary, contemporary, common meaning’ unless they are otherwise defined in the
statute itself,” Hennepin Cnty. v. Fed. Nat’l Mortg. Ass’n, 742 F.3d 818, 821 (8th Cir.
2014) (quoting United States v. Friedrich, 402 F.3d 842, 845 (8th Cir. 2005)). If the

                                            -4-
language’s meaning is unambiguous when “read in its proper context,” McCarthy v.
Bronson, 500 U.S. 136, 139 (1991), “then, this first canon is also the last: ‘judicial
inquiry is complete,’” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)
(quoting Rubin v. United States, 449 U.S. 424, 430 (1981)). Here, our inquiry begins
and ends with this first step.

      A.      Text and Context
              1.     Knowingly
       Smith’s opening salvo is his argument that “the district court only applied
‘knowingly’ to the ‘aircraft’ element of § 39A and did not apply ‘knowingly’ to the
‘aim the beam of a laser pointer at’ element.” This argument misses its mark. The
district court never suggested “knowingly” modifies only the “aircraft” element but
instead recognized there was no question the mens rea requirement modified the
“aircraft” element and then moved on to explain the real task at hand was determining
“how ‘knowingly’ modifies ‘aims’” and, more importantly, what “Congress meant by
the word ‘aim.’” Thus, contrary to Smith’s contention, the district court correctly
recognized “knowingly” modifies both the “aim” and “aircraft” elements. See, e.g.,
United States v. Bruguier, 735 F.3d 754, 758 (8th Cir. 2013) (en banc) (noting our
presumption is to read “‘a phrase in a criminal statute that introduces the elements of
a crime with the word “knowingly” as applying that word to each element,’” unless
“‘special contexts or . . . background circumstances’” call for a different reading
(omission in original) (quoting Flores-Figueroa v. United States, 556 U.S. 646, 652
(2009))).

       Nor does the district court’s interpretation of “to aim at”—that is, “to point
at”—wash away the “knowingly” requirement. Under the district court’s
interpretation, “knowingly” still modifies “aim” to require that an offender understand
he or she is pointing or directing the laser’s beam at an aircraft, regardless whether the
offender intends to strike the aircraft.



                                           -5-
      There is thus no real disagreement as to whether “knowingly” modifies “aim.”
Smith’s real argument, as the district court correctly observed, comes down to the
proper construction of the word “aim.”

               2.     Aim
       Smith contends the statute’s use of “aim” unambiguously “carries with it an
‘intent to hit’ the object” targeted. This word’s common American usage necessitates
no such intent requirement. See, e.g., New Oxford American Dictionary 33 (3d ed.
2010) (defining “aim” paired with a direct object as “point or direct (a weapon or
camera) at a target: aim the camcorder at some suitable object”); The American
Heritage Dictionary of the English Language 36 (5th ed. 2011) (defining the verb as
“[t]o direct (a weapon or camera) toward a point” and “[t]o direct or propel (an object,
such as a ball) toward a point”).

        The district court looked to Webster’s Third New International Dictionary 45
(1993), which defines the verb “to aim” as “to point in a particular direction or at a
particular object.” Smith asserts “the district court read the wrong definition from
Webster’s Third New International.” In his brief and at oral argument, Smith
proposed one of the dictionary’s other definitions: “to direct or point (as a weapon or
missile) at or so as to hit an object.” Id. This, Smith vigorously asserts, is the
“proper” definition and the one which “Congress intended to be used.” But even if
that were true (and we see nothing in the statute mandating the use of this particular
definition), Smith’s preferred definition still falls short. Under this disjunctive
definition, a defendant can “aim” by directing the beam “at . . . an object” or “so as
to hit an object.” Id.; see also Random House Webster’s Unabridged Dictionary 42
(2d ed. 2001) (providing the transitive definition: “to position or direct (a firearm, ball,
arrow, rocket, etc.) so that, on firing or release, the discharged projectile will hit a
target or travel along a certain path” (emphasis added)). The usage examples for this
definition show that “a small cannon” can be “aimed into space” and “a camera” can
be “aimed at the scene.” Webster’s Third New International, supra, at 45. Thus,

                                            -6-
aiming may accompany an intent to strike the target, but the word’s common meaning
is not limited to such instances.

        Ordinary use of the word “aim” confirms this understanding. Consider the
familiar phrase “Ready, aim, fire!” A ceremonial commander at a military memorial
orders the riflemen to ready their rifles, aim the barrels, and then pull the triggers. The
riflemen dutifully obey the second of these three orders not by manifesting any
present intent for either barrel or bullet to strike any target, but instead by directing
the rifle’s gaze. By using the term “aim at” rather than some result or contact oriented
term—for instance, “knowingly illuminating an aircraft”—Congress specified the act
of directing the active laser pointer’s beam, not of manifesting one’s intent to strike
the target.

        Congress’s clear choice is amplified by the “‘the design of the statute as a
whole and . . . its object and policy.’” Dada v. Mukasey, 554 U.S. 1, 16 (2008)
(quoting Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991)). By also
criminalizing the act of knowingly aiming at an aircraft’s “flight path,” Congress
illustrates its intent to discourage those who would direct the beam so as to harry the
aircraft without necessarily intending to strike it—including the individual who
knowingly directs the laser toward a recognized aircraft, but neglects to consider the
power of his device or the effective range of his laser.

       Relying on plain text and common usage, we conclude § 39A(a)’s requirement
that the laser beam be “knowingly aim[ed]” does not require an offender to intend the
beam to strike the aircraft or flight path in question.3


      3
        Smith seeks support in legislative history, focusing considerable energy on the
passing word-usage in select statements by legislative proponents. We are not
distracted from the plain meaning of a criminal statute by such “legislative
incunabula,” Taylor v. United States, 495 U.S. 575, 603 (1990) (Scalia, J.,
concurring). See United States v. Jungers, 702 F.3d 1066, 1069 (8th Cir. 2013). If

                                           -7-
        B.    Lenity
        The rule of lenity requires a criminal statute be construed in a defendant’s favor
where, “‘after considering text, structure, history, and purpose, there remains a
grievous ambiguity or uncertainty in the statute, such that the Court must simply guess
as to what Congress intended.”’ United States v. Castleman, 572 U.S. ___, ___, 134
S. Ct. 1405, 1416 (2014) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). This
rule is based on the need to provide “fair warning[,] . . . in language that the common
world will understand, of what the law intends to do if a certain line is passed.”
United States v. Bass, 404 U.S. 336, 348 (1971) (internal quotation omitted). Yet
penal laws “should not be construed so strictly as to defeat the obvious intention of
the legislature.” United States v. Warren, 149 F.3d 825, 828 (8th Cir. 1998).
“[G]rievous ambiguity or uncertainty” necessary to invoke lenity requires more than
“[t]he simple existence of some statutory ambiguity” because “most statutes are
ambiguous to some degree.” Muscarello v. United States, 524 U.S. 125, 138 (1998)
(internal quotation omitted).

      Smith does not invoke this rule, instead contending the statute is unambiguous
in his favor. As we have already explained, § 39A(a)’s common and ordinary
meaning gave Smith “fair warning” his conduct violated the law. Bass, 404 U.S. at
348.

III.  CONCLUSION
      Because the district court correctly interpreted 18 U.S.C. § 39A(a), it did not
err in excluding Dr. Sidebottom’s irrelevant testimony and rejecting Smith’s
inapposite proposed instructions. We affirm.
                      ______________________________



we were to consider such sources in this case, the legislative history here is, “as usual,
inconclusive,” Flores-Figueroa, 556 U.S. at 658 (Scalia, J., concurring).


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