ICE Agent Who Took Upskirt Photos of Flight Attendant Says It Wasn't a Crime Because He Was Sneaky
Um, no, the U.S. Court of Appeals for the 11th Circuit says, upholding his conviction.
Immigration and Customs Enforcement (ICE) agent Billy Olvera just wanted more cookies—or so he told an American Airlines flight attendant. Meanwhile, he used the ruse to take photos and videos of the attendant's butt, legs, and feet.
A police examination of his phone uncovered 23 photos and 20 videos of the flight attendant, who goes by A.G. in court documents.
Olvera's "clandestine video voyeurism," as his lawyer would later describe it, took place while Olvera was on duty, working as a deportation officer transporting a detainee on a flight.
"This case boils down to an armed, on-duty law enforcement officer who was actively transporting a detainee on a commercial flight using his cell phone to film underneath a flight attendant's skirt and take other compromising pictures of that flight attendant without her awareness or consent," as U.S. attorney Markenzy Lapointe summarized the case before it went to trial.
Olvera was convicted in federal court of interference with flight crew members and attendants. He appealed to the U.S. Court of Appeals for the 11th Circuit, arguing that he should be acquitted because he was sneaky about his attempts to photograph A.G. and didn't intend to interfere.
The 11th Circuit has now rejected this argument and affirmed Olvera's conviction.
The case stems from a Dallas to Miami flight in November 2023. Olvera was on the flight with another ICE officer, transporting a detainee.
According to A.G., "Olvera positioned himself with his shoulder and leg in the aisle area, which caused A.G. to have to brush up against him when she passed through the aisle, but she thought that he positioned himself this way because he was tall and needed more room," the appeals court explained. "A.G. also noticed Olvera' looking over his shoulder' a few times toward the galley area, but she thought that he was just trying to ensure that he was out of the way because the flight attendants were frequently going up and down the aisles."
When A.G. started going around with the beverage cart, Olvera asked her if he could have some cookies. They weren't on that cart, so she pledged that she would return with some cookies later. But back in the galley, she noticed something odd: Olvera's phone was sitting on his aisle-side thigh with the camera facing up.
When he called her back over to ask about the cookies again, he was talking so softly that A.G. had to lean in, semi-squatting, in order to hear him, she said. At this point, his phone was out in the aisle "with the camera facing up, very close to [her]," about "an inch and a half away from [her] knees," almost as if he was "trying to get underneath [her] dress," she testified at trial. She looked up at him and he then "took his phone and slid it up against his thigh and up to his chest," hiding the screen from her view. This caused "bells and whistles" to go off in her head, she said. She realized that maybe Olvera had been "trying to record underneath [her] dress" all along.
A.G. told another flight attendant, "L.A.," about her suspicions and they decided to test the theory. As A.G. walked down the aisle, L.A. secretly observed and recorded what happened from back in the galley. Sure enough, Olvera slid his phone underneath his tray table and used it to take pictures and videos of A.G.
A.G. told the trial court that she felt "violated" and "extremely enraged." She was used to unruly passengers—but not ones who were armed, she said.
As Olvera later waited for the detainee he was escorting to use the bathroom, he "stared" at A.G. and told her that he preferred the heels she had been wearing to the flat shoes she was wearing now, she testified.
But unbeknownst to Olvera, A.G. and L.A. had told the rest of the crew and the captain about Olvera's photography habit, and they had arranged for law enforcement to be waiting when the plane landed.
A police examination of Olvera's phone revealed 43 pictures and videos of A.G. Many were "images of A.G.'s backside while she was walking, sitting, and performing her cart services (angled many times in a way that suggested Olvera was trying to view up her skirt)," the 11th Circuit explained in its opinion.
Olvera was later charged with violating the federal law against "interference with flight crew members and attendants." It bans "assaulting or intimidating a flight crew member or flight attendant of the aircraft" in a way that "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, or attempts or conspires to do such an act."
At trial, prosecutors told the jury that a guilty finding did not require the government to prove that Olvera intended to intimidate A.G. or that he intended to interfere with her duties, merely that this had been a consequence of his knowing action.
He was convicted.
In a motion for a judgment of acquittal, Olvera's lawyer argued that he couldn't have broken the law because he wasn't aware A.G. was intimidated. After all, Olvera had "acted surreptitiously so as not to get caught" and "for all [Olvera] knew, he had gotten away with his clandestine video voyeurism. It was not until the Defendant disembarked the plane and was apprehended by law enforcement that Defendant realized he had been caught and the gig was up."
After the district court denied his acquittal motion, Olvera appealed to the 11th Circuit.
In an October 7 decision, three appeals court judges affirmed Olvera's conviction. "Contrary to Olvera's argument, the government was not required to prove that he was subjectively aware that he was intimidating A.G.," they wrote. All that is required "is that the defendant knowingly engaged in certain speech or conduct that intimidated a flight attendant in a manner that interfered with the performance of the attendant's duties," and there was "more than sufficient evidence" to suggest that Olvera did just this.
