                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4780


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CARL WARREN PERSING,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:06-cr-00261-F-1)


Submitted:    November 12, 2008            Decided:   November 25, 2008


Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Deborrah L. Newton, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             A jury convicted Carl Warren Persing of interfering

with the performance of the duties of a flight attendant, in

violation    of    49    U.S.C.    § 46504       (2000).      On    appeal,      Persing

challenges     his      conviction    on    several        grounds.       Finding     no

reversible error, we affirm.

            Persing first challenges the district court’s denial

of his motions to dismiss the indictment.                    Although he contends

that his speedy trial rights were violated, we conclude that the

district court did not violate the Speedy Trial Act, 18 U.S.C.

§§ 3161-3174      (2006),     amended       by    Judicial      Administration       and

Technical Amendments of 2008, Pub. L. No. 110-406, 122 Stat.

4291, 4294, because the court properly excluded from the speedy

trial calculation the continuances sought by Persing and his co-

defendant.        See 18 U.S.C. § 3161(h)(6), (h)(7)(A).                      Nor were

Persing’s Sixth Amendment speedy trial rights violated.                           United

States v.     Woolfolk,      399     F.3d       590,   597-98      (4th   Cir.     2005)

(providing standard and noting general rule that at least eight-

month delay will trigger Sixth Amendment inquiry).

            Next, Persing contends that the district court erred

in denying his motion to dismiss the indictment based upon lack

of venue.     Our review of the record leads us to conclude that

the indictment alleged facts sufficient to establish venue in

the district court.          Moreover, at trial, the Government proved

                                            2
venue by a preponderance of the evidence.                   See United States v.

Johnson, 510 F.3d 521, 524 (4th Cir. 2007) (providing standard);

United States v. Hall, 691 F.2d 48, 50 (1st Cir. 1982).

             Persing also asserts on appeal that the district court

erred   by   rejecting    his    claims       that    the   indictment      failed   to

allege that he intended to intimidate the flight attendant and,

therefore, did not allege a criminal offense.                      However, § 46504

does not require specific intent.                    United States v. Grossman,

131 F.3d 1449, 1451-52 (11th Cir. 1997) (holding “that § 46504

does not require any showing of specific intent; instead, it

defines a general intent crime,” and collecting cases from other

circuits).     Because the indictment filed against Persing alleged

the   essential     elements     of    the    offense,      see    United   State    v.

Naghani,     361   F.3d   1255,        1262    (9th    Cir.       2004)   (discussing

elements), and tracked the statutory language, we find that the

indictment is valid.          See United States v. Wills, 346 F.3d 476,

489 (4th Cir. 2003).

             Persing   contends        that    the    district      court   erred    by

denying his motion to dismiss the indictment because § 46504 is

vague and overbroad and “inhibits the exercise of free speech

protected by the First Amendment.”                    Our review of the record

leads   us   to    conclude     that    Persing’s      comments      to   the   flight

attendant amounted to true threats, which are not protected by

the First Amendment.          Watts v. United States, 394 U.S. 705, 707

                                          3
(1969); see R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992)

(“[T]hreats         of    violence        are       outside     the     First       Amendment

. . . .”).       We also agree with the district court that § 46504

is not void on its face or overbroad.                            See United State v.

Hicks,    980    F.2d     963,     969-70,      972    (5th    Cir.     1992)      (rejecting

claims    that      predecessor          statute      was     facially       overbroad       and

vague).          Turning          to     Persing’s       claim        that        § 46504     is

unconstitutional as applied to him, we find that the statute

provided      fair       notice    of     the    prohibited       conduct.           Although

Persing contends that the statute did not clearly define what

was required for intimidation and interference, “the meaning of

the words used to describe the [impermissible] conduct can be

ascertained fairly by reference to judicial decisions, common

law, dictionaries, and the words themselves because they possess

a    common   and    generally          accepted     meaning.”         United       States    v.

Eckhardt, 466 F.3d 938, 943-44 (11th Cir. 2006) (holding that 47

U.S.C. § 223(a)(1)(C) (2000), which prohibits anonymously making

annoying,       abusive,     harassing,         or    threatening      telephone       calls,

provides adequate notice of unlawful conduct); Hicks, 980 F.2d

at     971-72       (rejecting          as-applied          challenge        to     § 46504’s

predecessor       statute         and    finding      that     statute       was    “narrowly

tailored” where “only intimidating acts or words that actually

interfere with a crew member’s duties are penalized”).



                                                4
               Persing also asserts on appeal that the district court

constructively amended the indictment by failing to require the

jury to find as a fact that he knowingly interfered with the

flight.     A constructive amendment occurs when the Government or

the    court    broadens          the   possible     bases     for    conviction         beyond

those    charged       in    the    indictment,       which        results     in   a    “fatal

variance[]       because      ‘the       indictment     is    altered       to   change       the

elements    of    the       offense       charged,    such    that       the   defendant       is

actually convicted of a crime other than that charged in the

indictment.’”          United States v. Foster, 507 F.3d 233, 242 (4th

Cir. 2007) (quoting United States v. Randall, 171 F.3d 195, 203

(4th Cir. 1999)), cert. denied, 128 S. Ct. 1690 (2008).                                        We

conclude       that     there       was    no   constructive          amendment         to    the

indictment because the court’s instructions required the jury to

find    that    Persing       acted       knowingly,    which       is     consistent         with

§ 46504’s      general       intent       requirement.         Thus,       Persing’s         claim

fails.

               Finally,       Persing        asserts        that     the       evidence       was

insufficient to convict him because there was no evidence that

the flight attendant was intimidated, that Persing intended to

intimidate       the    flight          attendant,     or    that     Persing       knowingly

interfered       with       the    flight    attendant’s       duties.           This        court

reviews de novo the district court’s decision to deny a motion

filed pursuant to Fed. R. Crim. P. 29.                        United States v. Reid,

                                                5
523 F.3d 310, 317 (4th Cir. 2008).                        Where, as here, the motion

was based on a claim of insufficient evidence, “[t]he verdict of

a   jury    must     be     sustained       if    there    is    substantial         evidence,

taking the view most favorable to the Government, to support

it.”     Glasser v. United States, 315 U.S. 60, 80 (1942); Reid,

523    F.3d    at    317.         “Substantial       evidence      is       evidence    that    a

reasonable          finder    of     fact        could    accept        as     adequate     and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.”               Reid, 523 F.3d at 317 (internal quotation

marks and citation omitted).                     “[A]n appellate court’s reversal

of a conviction on grounds of insufficient evidence should be

confined to cases where the prosecution’s failure is clear.”

Foster,       507    F.3d     at     244-45       (internal       quotation       marks     and

citation      omitted).            With    these     standards         in    mind,     we   have

reviewed the trial transcript and find that the evidence was

sufficient to convict.               See Naghani, 361 F.3d at 1262 (setting

forth elements of offense); United States v. Meeker, 527 F.2d

12,    15   (9th     Cir.    1975)        (interpreting         predecessor      statute       to

§ 46504 and defining intimidation as “conduct and words of the

accused [that] would place an ordinary, reasonable person in

fear”).

              Finding        no    reversible        error,       we    affirm       Persing’s

conviction.          We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

                                                 6
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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