US v. Gonzalez, No. 05-10543 (7-3-07). Defendant acted out on a flight, acting strangely, and demanding that the flight land. He ended up saying that he had a bomb and thrashing about as terrified passengers screamed. Other passengers wrestled him to the ground. He plead to Interference with a Flight Crew, in violation of 49 USC 46504. At sentencing, he got a 9-level enhancement for "reckless endangerment." This appeal concerns whether that enhancement was appropriate. The 9th (McKeown and Ezra) said "yes" and affirmed the 27-month sentence. The 9th reasoned that the combination of interference with crew, need for a diversion, and fear and terror caused by threats, escalated the conduct to reckless endangerment despite the fact that the plane was never in real danger. The distinction is between the statute reading 'harm" to plane or "endangerment." The focus on the 9th repeatedly turned to the "chaos" the defendant supposedly caused. The 9th, turning to the standard of proof, held that it should have been clear and convincing under Dare, 425 F.3d 634 (9th Cir. 2005), but that the error was harmless.

Dissenting, Tashima argued that the plane was never endangered, and that the acts only went to interfering with crew. He cautioned that the court's reasoning will elevate every offense under this statute to endangerment.

Schroeder v. Tilton, No. 06-15391 (7-3-07). The 9th affirmed a dismissal of a petition. The petitioner argued that the state change in evidence (allowing prior sexual abuse acts to be admitted) was applied in his case in violation of the ex post facto clause. The 9th held that the quantum of evidence needed to convict petitioner, nor the burden of proof, was not shifted. Under AEDPA, the state court (California) decision was not unreasonable.