United States District Court, W.D. Michigan, Southern Division
OPINION DENYING DEFENDANT'S MOTION TO DISMISS THE
ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE.
September 20, 2016, a grand jury charged Defendant Fitzgerald
with operation of an air common carrier while under the
influence of alcohol, in violation of 18 U.S.C. § 342.
(ECF No. 3.) On December 2, 2016, Defendant filed a motion to
dismiss the indictment, arguing that the undisputed facts
show that the charged offense cannot be proven as a matter of
law. (ECF Nos. 15, 16.) The Government filed a response in
opposition (ECF No. 20), as well as a notice of intent to use
an expert witness (ECF No. 19). Defendant has filed a reply.
(ECF No. 21.)
relevant facts are undisputed. On August 25, 2016, Defendant
arrived at Avflight in Traverse City, Michigan, to co-pilot a
Talon Air flight to Massachusetts. Avflight is a fixed-based
operator that services charter planes in Traverse City, and
Talon Air is an air common carrier under 18 U.S.C. §
341. After arrival, Defendant began his pre-flight
preparation of the airplane, including communicating with the
airport tower to obtain the flight plan and clearances for
the trip. Defendant also turned on the auxiliary power,
inspected the outside of the aircraft, and brought coffee and
luggage to the aircraft. Although Defendant had only
completed 30% of the pre-flight preparations necessary for
take off, the plane could have departed within 45 minutes. In
addition, the three aircraft passengers had arrived and were
this time, the pilot, Manny Ramirez, smelled alcohol and
noticed Defendant's eyes were bloodshot. Ramirez asked
Defendant if he had been drinking, but Defendant denied it.
Later, Ramirez called Talon Air to report that Defendant had
been drinking. Talon Air contacted the Traverse City Police
Department, and Sergeant Drzewiecki responded. Defendant
failed a routine test for alcohol impairment, and denied
recently consuming alcohol. Sergeant Drzewiecki also
administered two preliminary breath tests, both of which
showed an unusually high blood alcohol content of over .30
percent. Later tests confirmed that Defendant's blood
alcohol content was .343 percent.
that day, Defendant was charged in state court with
“attempt to act as a crew member of an aircraft”
while having a blood alcohol content of .02 percent or
greater, in violation of Mich. Comp. Laws § 259.185(2).
Defendant was arraigned and released on bond. On September 6,
2016, the Government filed a federal complaint, and the state
charge was dismissed without prejudice.
criminal complaint continuation sets forth the facts to
support a finding of probable cause for Defendant's
violation of § 342, including that Sergeant Drzewiecki
found Defendant sitting in the cockpit, wearing plane
earphones and conducting pre-flight checks of gauges. (ECF
No. 1-1, PageID.3.) Further, the indictment provides that
Defendant “operated an air common carrier while under
the influence of alcohol, specifically operating as copilot a
Talon Air managed Bombardier Challenger 604 aircraft with
tail number N604RR on the tarmac staging area of Cherry
Capital Airport while possessing a blood alcohol content of
approximately 0.343 percent.” (ECF No. 3.)
Rule of Criminal Procedure 7(c)(1) provides that “[t]he
indictment or information must be a plain, concise, and
definite written statement of the essential facts
constituting the offense charged[.]” The indictment
“need not contain a formal introduction or
conclusion.” Fed. R. Cr. P. 7(c). An indictment is
sufficient if it contains the elements of the offense
charged, fairly informs a defendant of the charge against
which he must defend, and enables him to plead an acquittal
or conviction in bar of future prosecutions for the same
offense. Hamling v. United States, 418 U.S. 87, 117
(1974). “The indictment must be read as a whole,
accepting the factual allegations as true, and construing
those allegations in a practical sense with all the necessary
implications.” United States v. McAuliffe, 490
F.3d 526, 531 (6th Cir. 2007) (citing United States v.
Reed, 77 F.3d 139, 140 n.1 (6th Cir. 1996) (en banc)).
“‘[a]n indictment will usually be sufficient if
it states the offense using the words of the statute itself,
as long as the statute fully and unambiguously states all the
elements of the offense.'” Id. (quoting
United States v. Superior Growers Supply, Inc., 982
F.2d 173, 176 (6th Cir. 1992)). But the statutory language
“‘must be accompanied with such a statement of
the facts and circumstances as will inform the accused of the
specific offense, coming under the general description with
which he is charged.'” Id. (quoting
Hamling, 418 U.S. at 117-18).
Rule 12(b)(3), a motion to dismiss an indictment is
appropriate if the undisputed facts establish that the
offense charged cannot be proven as a matter of law.
United States v. Levin, 973 F.2d 463, 470 (6th Cir.
1992); see also United States v. Ali, 557 F.3d 715,
719-20 (6th Cir. 2009) (“[Defendant's] motion to
dismiss did not assert an innocence defense; rather, it
requested dismissal of the indictment on the ground that, as
a matter of law, the undisputed facts did not give rise to
the offense charged in the indictment.”).
“[W]here the defendant is arguing that as a matter of
law the undisputed facts do not constitute the offense
charged in the indictment, the Court is reviewing a question
of law, not fact.” United States v. Vertz, 40
F. App'x 69, 70 (6th Cir. 2002). The Court “may
make preliminary findings of fact necessary to decide
questions of law presented by pretrial motions so long as the
trial court's conclusions do not invade the province of
the ultimate finder of fact.” Id. at 467. But
the Court is “not limited to the face of the indictment
in ruling on the motion to dismiss since Rule 12 vest[s] the
[C]ourt with authority ‘to determine issues of fact in
such a manner as the [C]ourt deems appropriate.'”
Id. (quoting United States v. Jones, 542
F.2d 661, 664 (6th Cir. 1976)).
“operates or directs the operation of a common carrier
while under the influence of alcohol or any controlled
substance . . .” violates § 342. As such, the
Government must prove the following beyond a reasonable
doubt: Defendant (1) operated (2) a common carrier (3) while
under the influence of alcohol. Defendant argues that the
Government cannot prove that he operated the aircraft in
violation of § 342. Defendant notes that § 342 does
not define the term “operate” and that there are
few cases interpreting this statute. Further, the limited
case law interpreting § 342 is comprised of cases where
the aircraft actually departed, unlike the facts here.
See United States v. Cope, 676 F.3d 1219 (10th Cir.
2012); United States v. Prouse, 945 F.2d 1017 (8th
also important to note that there is no attempt provision in
§ 342. Therefore, Defendant must have actually operated
or directed the operation of the aircraft. A substantial step
towards operation may be sufficient for attempt; but here, it
is not enough for a conviction under § 342. See,
e.g., United States v. Bailey, 228 F.3d 637, 640 (6th
Cir. 2000) (explaining that the ...