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United States v. Fitzgerald

United States District Court, W.D. Michigan, Southern Division

March 22, 2017




         A. BACKGROUND

         Defendant Fitzgerald is a licensed commercial pilot, charged with operating a common carrier while intoxicated in violation of 18 U.S.C. § 342. In particular, the government says that Defendant was found in the cockpit of the commercial airplane that he was scheduled to co-pilot with a blood alcohol content of .343 percent. The parties agree that the aircraft engines were not running and that no passengers had boarded, but the government says that Defendant was still operating the aircraft because he was performing mandatory pre-flight checks of the equipment and otherwise taking action with the purpose and effect of actually co-piloting the flight.

         The Court earlier denied Defendant's motion to dismiss the indictment and held that operation of a common carrier is broad enough to encompass the kind of activity the government says occurred, at least provided that appropriate expert testimony establishes Defendant's activities are really necessarily performed as part of his operational co-pilot responsibilities. This still leaves the question, however, of how to instruct the jury on what counts as operation of a common carrier and what does not. The Court convened a hearing to address the issue with the parties. There is no standard instruction that the Court or the parties have found. There is no statutory definition of the term “operates or directs the operation of a common carrier.” And there is no case law that construes the meaning of the statutory phrase.

         To frame the discussion, the Court presented the parties with proposed language that attempted to define the term in functional and spatial terms. In particular, the Court proposed that the term cover (1) all actions taken by a pilot in his capacity as such; but (2) only if the actions were taken while on board the aircraft. The Court's effort was to define a zone of the pilot's total compensated activity that fairly encompassed genuinely operational conduct-things intended to affect the actual functioning of the plane-from merely administrative or other preliminary or postliminary work that has no proximate connection to aircraft functioning.

         Defining the line between genuine operational activity, and merely preliminary or postliminary administrative activity should take into account the typical set of activities a commercial pilot undertakes while on the job, and provide meaningful guidance for the jury in drawing the line in disputed cases. Obviously, manipulating control inputs while the aircraft is actually moving in flight or on the ground counts as operation. But passive monitoring of oil pressure, altimeter, radio traffic and the myriad of other cockpit indicators while the plane is flying should also count as operation even if the pilot is not actively manipulating control inputs. The Court's proposed instruction takes that into account and treats both kinds of activities as operation of the common carrier.

         But how far should operation extend before the plane starts and after the plane stops moving on any given flight? Studying weather reports in the pilot lounge-though important to safe travel-may simply amount to necessary preparation for flight, but fall short of actual operational activity. The necessary external visual inspections of the aircraft are also surely essential to safe flight, and may be connected to flight operation because a failure to discover some physical interference with an aileron could surely affect the aircraft in flight. And yet external airplane checks like reviewing weather reports in the pilot's lounge, lack a direct connection to operational control of the aircraft. For framing the issue initially, the Court selected a line favorable to Defendant by requiring the operational activity to occur while on board the aircraft, thus necessarily excluding both external aircraft checks and pilot lounge activity.

         But once a commercial pilot steps on board the aircraft and into the cockpit, it is hard to characterize any activity undertaken as a pilot as merely administrative. The pilot is now in the physical location where he or she can access all of the aircraft controls. The required pre-flight checks involve physically testing and checking the controls that will be used in flight-radio, rudder pedals, circuit breakers, autopilot and fuel gauges to name a few. Some of what the pilot does may actually directly control the function of the aircraft, such as inputting flight-plan parameters that will engage when the autopilot feature takes over in flight. The Court's proposed language takes these situations into account by holding a commercial pilot accountable under the statute based on any activity undertaken as a pilot while on board the aircraft he or she is assigned to pilot, whether before, during or after flight.


         The Court invited the parties to respond to the proposed jury instruction and to propose their own language. The government suggested the requirement of “on board” activity was too restrictive, but that it would accept the definition in this case. Defendant objected that the Court's proposal was too broad and proposed that operation be limited to activity after passengers boarded or after the engines are started. The Court is not persuaded by Defendant's proposal, but believes some minor changes to the Court's proposal are appropriate to address the comments of the government. The Court is also submitting a proposed alternative instruction for the parties' consideration.

         1. Defense Arguments

         Defendant argues that, in light of the scope of the Anti-Drug Abuse Act and amendments to § 342, the plain meaning of the term “operate” is ambiguous and the term's legislative history does not provide any insight as to its meaning. Thus, Defendant explains that the Court must apply the rule of lenity. See United States v. Miller, 734 F.3d 530, 540 (6th Cir. 2013). Defendant proposes that the phrase “‘operates or directs the operation' of a common carrier begins with either (1) the boarding of the passengers on the common carrier or (2) the starting of the engines of the common carrier.” (Def.'s Mem., ECF No. 35, PageID.92.) Defendant argues that this language aligns with the purpose of §§ 341-343 and principles of statutory construction. Defendant contends that this language creates a bright line, grounded in the words and intent of the statute, and appropriately carves out all preliminary flight activities. According to Defendant, if Congress had meant to cover preliminary flight activities, it would have criminalized not merely operation of a common carrier, but attempted operation as well.

         The Court is not persuaded by Defendant's argument. The statute's use of the term “operate” is not so ambiguous as to invoke the rule of lenity. The following well-established principles guide the Court's construction of the statutory phrase:

The language of the statute is the starting point for interpretation, and it should also be the ending point if the plain meaning of that language is clear. However, this court also looks to the language and design of the statute as a whole in interpreting the plain meaning of statutory language. Finally, we may look to the legislative history of a statute if the statutory language is unclear. If the statute remains ambiguous after consideration of its ...

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