Journal of Air Law and Commerce
67 J. Air L. & Com. 875
ARTICLE: AVIATION PROFESSIONALS AND THE THREAT OF CRIMINAL LIABILITY - HOW DO WE MAXIMIZE AVIATION SAFETY?
NTSB Bar Association, Select Committee on Aviation Public Policy*
* Committee Members: James K. Brengle, William L. Elder, Darrell J. Green (Chairman), Hays Hettinger, and Martin R. Raskin. See infra Appendix A for Committee Member biographies.
The National Transportation Safety Board (NTSB) Bar Association joins numerous other groups in the aviation community in their concern over a perceived trend of federal, state and local governmental authorities to initiate criminal prosecutions against aviation professionals for acts and omissions that heretofore have been treated solely as civil infractions. Regulatory agencies often employ an "emphasis" or "special safety enhancement" approach to enforcement, as illustrated by the NTSB's/Federal Aviation Administration's (FAA) current runway incursion reduction program. n1
There is nothing new about criminal prosecution by federal and state authorities of individuals for acts that also violate civil regulations. In fact, several federal statutes and regulations, including the Federal Aviation Regulations (FARs), establish parallel criminal and administrative enforcement mechanisms. n2
Notwithstanding these salutary common goals, there has been substantial concern that the increased involvement of criminal investigators actually may be detrimental to aviation safety, since [*877] aviation professionals fear that routine business decisions could now become the basis for criminal prosecutions. As a result of the increased involvement of criminal investigators, these witnesses could become more guarded when dealing with accident and safety investigators. This, in turn, could lead to less-informed investigations, at the expense of aviation safety.
For these reasons, further inquiry and analysis of this problem is suggested. For example, what effect will a climate of fear have on the ability of NTSB or FAA investigators to interview witnesses? Will the reluctance of witnesses to disclose critical facts thwart the fact-finding process to the point where the NTSB will be unable to determine the cause or probable cause of an accident, or develop accurate safety recommendations? How would such a trend impact current FAA and industry efforts to be "partners" in advancing aviation safety by sharing information voluntarily? Does it encourage selective prosecution in high visibility accidents, as some commentators have suggested? Lastly, what are the practical implications for aviation legal practitioners in advising clients regarding voluntary cooperation with investigating agencies such as the NTSB and the FAA?
With these concerns in mind, the NTSB Bar Association created its Select Committee on Aviation Public Policy and asked that Committee to explore these issues and to report its findings to the Association. The Board of Directors of the NTSB Bar Association has reviewed the Committee's work and recommendations and by majority vote has authorized this paper for publication, n3 adopting it as the official position of the NTSB Bar Association on the subjects addressed herein.
The Committee asked me to thank Ms. Pam Herrington for her assistance and personal commitment in the preparation of the paper. In addition, our organization gratefully acknowledges the contribution of the Journal of Air Law and Commerce at Southern Methodist University for encouraging us to format our work for publication.
Michael L. Dworkin
National Transportation Safety Board Bar Association
Following a French hot air balloon "disaster" in 1852, local governmental authorities obtained criminal sanctions against the pilot who caused the accident. n4 Despite the precedent of this early prosecution, government authorities have not pressed the use of criminal law to influence the conduct of aviation professionals in the performance of their duties. This hands-off approach by prosecutors has been based largely on the sensible assumption that the individuals involved had absolutely no intention of causing the harm attributed to their activities, or otherwise to commit any kind of criminal offense. n5
In the wake of more recent aircraft mishaps, however, there has been an increasing perception within the aviation community that federal and state prosecutors are becoming more prone to resort to criminal sanctions to judge the conduct of companies and individuals in the aviation community. n6 In the year 2000 alone, five major industry and government forums considered the issues surrounding the criminalization of aviation accidents and incidents. n7 Representatives of all three [*879] branches of the federal government have expressed similar concern in connection with the effects of this perceived trend.
The Eleventh Circuit addressed the issue in connection with its review of the criminal case that resulted from the 1996 crash of ValuJet Flight 592. n8 In vacating the convictions of SabreTech for recklessly causing the transportation of hazardous material in air commerce, the court noted, "The record reflects that these aviation repair station personnel committed mistakes, but they did not commit crimes." n9 In reaching its conclusion, the court also noted that SabreTech's employees "did not intend to kill" the victims of that accident. n10
In enacting the National Transportation Safety Board Amendments Act of 2000, n11 the U.S. Senate Committee on Commerce, Science and Transportation made the following comments:
Recently, several NTSB accident investigations have been impeded as other non-transportation related agencies have initiated their own separate investigations. In some investigations, court orders have been issued to prevent the NTSB from testing [*880] critical components. Safety Board investigators also have been unable to interview transportation operators as criminal and civil litigation has increased. These criminal investigations have impacted NTSB investigations into the ValuJet crash, the FineAir DC-9 cargo crash, and a grade crossing accident at Indiana.
The delays caused by these prosecution inquiries have restrained the Board's capability to make timely determinations of probable cause and issue safety recommendations. To ensure that NTSB will continue to be capable of exercising its responsibilities in a timely and judicious manner, the bill includes language reiterating NTSB's existing jurisdiction, whether the accident is accidental or intentional. The Committee fully expects the NTSB to maintain its longstanding policy of accommodating its investigatory needs to the unique needs of criminal investigations when criminal behavior is suspected or demonstrated. n12
In opening the July 27, 2000 hearings of the Aviation Subcommittee of the House Transportation and Infrastructure Committee, Chairman John Duncan (R-TN) and Ranking Member William Lipinski (D-IL) expressed bipartisan concern with the trend toward "criminalizing negligent and unintentional conduct that may have contributed to an aviation accident." n13
As early as the Twenty-First Annual Air Law Symposium at Southern Methodist University, Admiral Donald Engen, then-FAA Administrator, former NTSB Member, and former combat Naval aviator, said "I'm not sure that the next pilot will cooperate, especially if he thinks that information provided to safety investigators might be used by other parties in a criminal prosecution." n14 The FAA continues to be concerned about the decreased flow of information that results from the fear of criminal prosecution. In 1998, the FAA Office of System Safety said: "the fear of criminal prosecution for violations of aviation safety laws and regulations ... obviously discourages the flow of [*881] aviation safety information." n15 In fact, the FAA was concerned enough to ask ICAO to examine whether criminal prosecutions discourage the flow of safety information. n16
Several criminal investigations and prosecutions have contributed to this increasing perception. n17 The premier example, of [*882] [*883] course, is the federal and state prosecutions of SabreTech, Inc. (SabreTech) and three of its employees following the 1996 crash of ValuJet Flight 592 into the Florida Everglades. SabreTech was ValuJet's maintenance contractor, whose employees improperly packaged and labeled expired chemical oxygen generators before returning them to ValuJet. The NTSB concluded that the oxygen generators ignited shortly after takeoff and were a cause of the ValuJet crash. n18
This was the first full-scale criminal investigation into the facts and circumstances underlying a major U.S. aviation disaster. The charging decisions were notable because several federal charges were based on maintenance records that had nothing whatsoever to do with the occurrence of the crash.
If this trend toward conducting criminal investigations simultaneously with aircraft accident investigations becomes routine, there is significant risk that the focus of future accident investigations will shift to potential criminal liability of the aviation professional rather than the determination of probable cause of the accident, and the promotion of aviation safety. Since the majority of accidents are caused by human error and not intentional misconduct, aircraft accident investigations should proceed initially on the assumption that the accident did not occur by reason of a criminal act. The investigative procedures and protocols of the aviation professionals on the accident scene are well suited to uncovering the facts of the case, including those pointing to criminal misconduct. Nonetheless, the mere fact [*884] that the FAA and NTSB are more experienced and more capable than the Department of Justice at policing compliance with the FARs does not mean that zealous federal, state or local prosecutors will be content to leave the business of aviation investigation to the accident-investigating professionals. Indeed, even though there is really no evidence that the aviation industry is rife with fraud or various other forms of criminal activity, there are those who would portray the situation in the aviation community as having reached the point of national crisis. Indeed, after the ValuJet case, the U.S. Attorney in Miami announced publicly that criminal prosecutions of aviation professionals after an accident would be a "top priority" of his Administration.
Of course, criminal prosecutions in the aftermath of aviation accidents always should be pursued whenever criminal activity is suspected. In this regard, Congress recently has reaffirmed the general authority of the NTSB to determine whether the cause of an accident was truly accidental. In cases where the evidence suggests that the accident was caused by nothing more than negligence, including mere pilot error, or a mechanic's mistake, the necessary prerequisite to a criminal investigation is simply not present. n19
II. SUBSTANTIVE AVIATION AND CRIMINAL LAW
The aviation professional is always subject to criminal prosecution for violations of any criminal statute. Criminal prosecutions also have been conducted for violations of regulations prohibiting such things as unlicensed aerial advertising, n20 reckless flying, n21 or endangerment of passengers or those on the ground.
A. Federal Law
1. Title 49 U.S.C.
The provisions of Title 49 of the United States Code (Transportation) include penalties that may be imposed upon aviation programs for violations of its various statutory sections n22 Along with the more familiar civil penalties, n23 these federal statutes also provide criminal penalties for certain offenses committed by individuals engaged in the aviation industry. n24
Criminal penalties within Title 49 are delineated for specific violations such as forgery of certificates, n25 refusal to testify before the NTSB or the Secretary of Transportation in response to a subpoena, n26 and for willful violation of security provisions of [*886] the Federal Aviation Program. n27 In addition, there is a provision for general criminal penalties for violations of certain federal air commerce and safety statutes and regulations for which no specific penalty is otherwise provided. n28 The statute requires that the violator acted both "knowingly and willfully" in connection with the offense charged. n29
2. The False Statement Statute
The Department of Justice also prosecutes aviation-related matters under certain provisions of Title 18 of the United States Code, including those prohibiting the making of a materially false statement regarding a fact within the jurisdiction of a federal agency. n30 Violation of the False Statement Statute may result in a five-year prison term for each count charged, as well as substantial fines and restitution. n31
The False Statement Statute is one of the most flexible and effective weapons of federal prosecutors, in large part because the courts have interpreted it so expansively. For instance, although the government must demonstrate that the defendant knew the statement was false, some courts have held that the government can meet that burden by showing that the defendant acted with a reckless disregard for the truthfulness of the statement coupled with a conscious effort to avoid learning the truth. n32
Because the False Statement Statute is worded in language that is industry non-specific, it can be applied broadly to any subject matter, including aviation. Indeed, given the FAA regulatory scheme which measures compliance largely by reference to the existence and accuracy of detailed documentation, it would seem that virtually every aspect of document-keeping in [*887] the ordinary course of conducting an aviation business would fall under the scrutiny of prosecutors who could cite the statute as a basis for claiming a superior right to police the entire federal aviation regulatory scheme.
For example, accurate and complete documentation of the performance of aviation maintenance is a touchstone requirement of the safety-oriented FARs. The failure to perform a maintenance task properly, or to document it fully, n33 may lead not only to a civil enforcement action for violation of an FAR, n34 but also may give rise to a criminal prosecution under the False Statement Statute.
Consequently, three questions may be posed with respect to the use of the False Statement Statue in the context of aviation: (1) whether or not the FAA, in drafting its regulatory scheme, contemplated such broad use of the criminal sanctions of the statute as a means of regulating behavior and promoting air safety; (2) whether penalties authorized under the statute are too harsh or too all-encompassing, when applied to the aviation community; and (3) whether it is a salutary goal in the first place, to engraft onto the body of aviation regulations, a statute that creates general and broad-reaching criminal liability that was never contemplated by Congress.
Prior to the recent crash of Flight 261 off the coast of California, Alaska Airlines was under investigation for allegedly falsifying paperwork. When the accident occurred, law enforcement agencies immediately placed themselves in the investigation and denied some civil accident investigators access to certain key wreckage components, maintenance records, and witnesses. n35 What appeared to be the most disturbing aspect of this intrusion was the a priori assumption by the law enforcement agencies that criminal activity must have been a cause of the accident. n36 By denying civil investigators access to valuable data, information, and hardware, these law enforcement agencies hampered the ability of the civil investigators to help determine the probable cause of the accident.
[*888] The Arrow Air indictment provides another example of the application of the false statement statute to the aviation industry. In that case, Arrow had affixed "Equipment Transfer Records" (ETRs) to parts which had been removed from two Boeing 727s that it had decided to "part out" rather than return to service. The ETRs contained an entry that read "CERTIFIED SERVICEABLE BY ." The government's theory was that the parts had not been inspected properly upon removal. Therefore, the ETRs "statement" that they were serviceable was knowingly and materially false in violation of 18 U.S.C. 1001.
The False Statement Statute applies not only to "pencil whipping," but also to statements made in interviews with the FAA, NTSB or any federal agent. Until recently, many courts allowed an individual being interviewed to answer inquiries from a federal agent with a general denial known as an "exculpatory no." Those courts held that such a bare bones denial, without more, was insufficient to constitute a false statement offense. Recently, however, the United States Supreme Court abolished the "exculpatory no" doctrine, holding that falsely answering "no" to an investigator's question is indeed a violation of 18 U.S.C. 1001. n37
3. Mail and Wire Fraud
Federal law prohibits participation in schemes to defraud using either the U.S. mail or interstate "wire" communications including facsimiles, telephones, radio, television and computers. n38 Violation of the mail or wire fraud statutes may result in five-year prison terms for each count charged, as well as substantial fines and restitution.
The government used the wire fraud statute to indict several supervisory and management level employees of Eastern Airlines in 1991. The government's theory was that Eastern led its passengers to believe that rigorous maintenance checks had been performed on its planes, when in fact, the defendants knew that such representations were false. In furtherance of the alleged scheme to defraud, Eastern and several of its employees were alleged to have falsified aircraft maintenance log books and work cards and to have created false computer entries to create the appearance that regularly scheduled maintenance had been completed when, in fact, it had not. The indictment [*889] charged that the defendants falsely and fraudulently conspired to "impede, impair, obstruct and defeat" the lawful government functions of the FAA to promote safety of flight and ensure that aircraft are properly maintained. Eastern Airlines pled guilty to the indictment and paid a $ 3.5 million fine. The case against the Executive Vice-President of Maintenance was ultimately dismissed due to violations of the Federal Speedy Trial Act requiring criminal prosecutions to be brought in a timely fashion.
4. Hazardous Materials Transportation Act
The Hazardous Materials Transportation Act (HMTA) renders it unlawful for a person to offer or accept a hazardous material for transportation in commerce without first complying with detailed regulations prescribing how the hazardous materials (hazmat) must be packed, labeled, described and transported. n39 Criminal penalties may be imposed where, in violation of a hazardous material regulation, a person willfully delivers hazmat to an air carrier or other operator of a civil aircraft for transportation in air commerce or recklessly causes the transportation of the property in air commerce. n40 While there is some debate regarding the extent of the government's ability to prosecute a person for recklessly causing the transportation of property in air commerce, it is clear that prosecutors will consider prosecuting companies for this reckless conduct. n41 A criminal violation of the Hazardous Materials Regulations (HMRs) may result in fines, imprisonment, or both. n42
5. Resource Conservation and Recovery Act (RCRA)
RCRA governs the transportation, storage, treatment, and disposal of hazardous waste products, as well as the making of false statements in required documents, manifests and labels. n43 RCRA imposes criminal penalties up to $ 50,000 per day of violation [*890] and/or five years imprisonment for persons who "knowingly" commit certain violations of the Act's requirements. The statute also defines a crime termed "knowing endangerment," the purpose of which is to provide more substantial felony penalties when the violator "knows at the time that he thereby places another person in imminent danger of death or serious bodily injury." n44 For "knowing endangerment" convictions, the prison term is raised to fifteen years and corporate fines are raised to $ 1,000,000 for each count. The knowing endangerment provision could have serious implications in the event of a particularly egregious RCRA violation deemed to be causally related to an aircraft accident.
Federal law prohibits the willful destruction of an aircraft or aircraft facilities. Title 18 U.S.C. 32 criminalizes, among other things, willfully damaging an aircraft or aircraft facility, setting fire to an aircraft or aircraft facility, placing a destructive device or substance in an aircraft or aircraft facility or performing an act of violence against an aircraft or aircraft facility. The statute carries with it a penalty of twenty years imprisonment as well as fines and restitution. In the event that a death results from a violation of this statute, the penalty is increased to either life imprisonment or the death penalty. n45
When terrorism is clearly the precipitating cause of an aircraft accident, such as the attacks on the World Trade Center and the Pentagon on September 11, 2001, criminal law enforcement officials must assume control of the criminal scene immediately. As noted earlier, where clear criminal intent is involved, the goal of promoting safety is best served by criminal investigations. In such cases, the NTSB remains available to provide a significant contribution through its technical expertise; however, its expertise is of secondary importance to the investigation.
In spite of the fact that this statute clearly was enacted to fight international terrorism, the United States used this statute to charge SabreTech with violation of this statute in a case where there was never an honest suspicion of terrorist activity as a cause of the accident. SabreTech's mechanics had signed inaccurate work cards indicating that safety caps had been installed on removed oxygen generators, when, in fact, safety caps had [*891] not been installed. Nonetheless, the mechanics tagged these generators as unserviceable (which prevented them from being reinstalled on an aircraft), took what they believed were equivalent safety measures to render the generators safe, and sent the generators to the ValuJet hold area of the facility for disposition. Unbeknownst to the mechanics, the generators were later returned to the ValuJet ramp area by a shipping and receiving clerk who mistakenly believed that the generators were empty. In charging SabreTech, the government was essentially charging that this fact pattern constituted the willful placement of a destructive device on an airplane. While the jury acquitted the company of this charge, the fact that the government actually charged this as a crime is a strong indication of how dramatically the enforcement landscape has changed.
B. The Assertion of General Police Power under State and Local Law
Perhaps the clearest indication of the changing terrain was the State of Florida's decision to charge SabreTech with felony murder and manslaughter. The State of Florida announced this decision at a joint press conference on the same day the federal government brought charges against SabreTech. While the efficacy of the decision to charge remains to be seen, nothing prevents other states from leveling similar charges in the future if they believe the situation warrants criminal prosecution.
At least thirty-five states have enacted statutes addressing the operation of an aircraft in either a reckless manner or while under the influence of alcohol or drugs. n46 While most state statutes are either a generic "reckless flying" statute or only involve drug or alcohol use, not all statutes are so general in scope. n47