UNITED STATES OF AMERICA v. DAVID PATRICK DIAZ
US Court of Appeals for the Fourth Circuit, Floyd, July 26, 2017 (Amended July 31, 2017),
Restitution- Interference with Flight Crew– Because “rushing a cockpit” is not a “crime of violence” under federal law, restitution is not mandatory.

One problem with our appellate system is, oddly enough, precedent. A poorly crafted argument, a concession, or a waiver can result in a rule that will bind others, even those who would not be so foolish…
The government waived their argument under the residual clause of the Crime of Violence definition. And, while the residual clause may be unconstitutionally vague (as apparently they all are?) it’s still ridiculous that an appellate court would put out an opinion affirmatively failing to test a leg upon which it rests.

Facts:
In early 2015, David Diaz tried to take a flight from Washington Reagan National Airport to Texas. Diaz felt extreme anxiety and paranoia about flying, and self-medicated with alcohol. Diaz boarded the flight, but was too nervous to stay in his seat and remain on the plane, and so he voluntarily
deplaned.
Diaz tried again to fly the next morning, but again was too nervous and again voluntarily deplaned after boarding.
Diaz boarded a third flight, operated by United Airlines, later that day. At the time he boarded the flight, Diaz was intoxicated. Approximately 45 seconds after takeoff, Diaz left his seat and rushed toward the cockpit. According to witnesses, he yelled that the plane was going too slowly, was going down, and was shooting flames. Diaz also reportedly shouted about jihad, a bomb, and that there was “something in the belly of the plane.”
Other passengers tackled Diaz and attempted to restrain him, but he resisted. The pilots returned the flight to Dulles approximately thirteen minutes after takeoff.
Feeling too upset to continue working, the flight attendants would not re-board the plane. As a result, the flight was canceled and passengers were re-booked onto other flights.
U.S. Probation Services determined in Diaz’s presentence report (PSR) that United Airlines suffered a loss of $22,151.77 as a result of Diaz’s criminal conduct, and recommended an order of restitution in that amount. The PSR also noted that Diaz’s financial condition made him unable to pay a fine or costs.
Diaz pled guilty and was sentenced to restitution in the full amount of $22,151.77 under the Mandatory Victims Restitution Act (MVRA).
Diaz appealed, arguing that he should not have to pay any restitution.

Held:
The Fourth Circuit agreed in part. The MVRA does not apply to this crime, so restitution is not mandatory. However, restitution might be owed to United Airlines under the Victim and Witness Protection Act (VWPA).

Restitution- Under the Victim and Witness Protection Act (VWPA), restitution is discretionary. Under that act the court must consider “the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate” in determining whether to order restitution.

Restitution- In contrast, the MVRA requires mandatory restitution. The MVRA applies for crimes of violence where an identifiable victim or victims has suffered a physical injury or pecuniary loss (it also applies for other crimes such as CDS and theft/fraud not relevant here).

Flight Crew Interference- flight crew interference does not satisfy the “force clause” of the federal crime of violence definition (The Court did not consider the residual clause because it held the Government waived its right to argue that part).

Crime of Violence- In order for a crime to qualify as a crime of violence under the force clause, it must absolutely require “the use, attempted use, or threatened use of physical force against the person or property of another.” “Physical force” has been defined as “violent force capable of causing physical pain or injury to another person.

Flight Crew Interference- There is no evidence that flight crew interference is intended only for “serious assaults” as opposed to other ones. Because it can apply to all assaults, it does not count as “violent force capable of causing physical pain or injury” and so does not qualify as a “crime of violence.”

Restitution- VWPA – An award of partial restitution on the basis of financial condition is not permitted under the VWPA.