December 28, 1999 Criminal Liability in Aviation

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by	Phillip J. Kolczynski

About the Author ... Phillip J. Kolczynski manages his own law firm in Irvine, California. He has a national practice, concentrating in aviation, product liability and business litigation in federal and state courts. Phil teaches evidence, product liability and aviation law at the Aviation Safety Program, School of Engineering, University Of Southern California. He chaired the 1990 ABA National Institute on Aviation Litigation in Washington, D.C., and has spoken nationally at numerous aviation litigation symposia. Prior to moving to California in 1983, he was a trial attorney in the Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation Division, Office of the Chief Counsel, Federal Aviation Administration, Washington, D.C. Phil graduated from Case Western Reserve School of Law, Cleveland, Ohio, in December, 1976, and attended college at Marquette University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full Scholarship. Before entering law school, he was a Marine Corps Captain and F-4 Phantom Pilot. He is a Commercial Pilot with instrument and multiengine ratings. AviationLaw@AVweb.com AviationLawCorp.com

On July 13, 1999, the Florida State Attorney's Office brought criminal charges against SabreTech, Inc. because of the 1996 ValuJet DC-9 disaster. The state prosecutor's charges include 110 counts of third-degree murder and manslaughter under Florida law against SabreTech, Inc. Apparently no state criminal charges have been filed against any of the executives or employees of SabreTech, ValuJet or the Federal Aviation Administration.

The U.S. Attorney's office in Miami went further, and issued a federal indictment including 24 criminal counts against SabreTech, Inc. and three of its maintenance workers. Charges have been lodged against the maintenance personnel for the mislabeling and mishandling of hazardous materials and false statements which could result in jail time and large monetary fines.

The Florida prosecutors have issued press releases implying they have brought criminal charges apparently to "send a message" to prevent a ValuJet disaster from ever happening again. These indictments have sent a chill throughout the industry.

This seems like an opportune time to review the circumstances in which an aviation professional can have criminal liability exposure, and to explore some measures available to protect against criminal liability exposure.

What Message Are the Florida Prosecutors Sending to the Aviation Industry?

Even though the maintenance personnel being indicted are at risk for imprisonment, it appears that the main target of this criminal prosecution is SabreTech, Inc. A corporation is a separate legal entity from its stockholders, and can be prosecuted for criminal violations. Note that criminal authorities have not attempted to prosecute the stockholders or managers who own and run this corporation. Thus, the deterrent value is questionable.

The National Transportation Safety Board is tasked by congress with investigating accidents, determining probable causes, and recommending steps to prevent recurrences. The Federal Aviation Administration is tasked with responsibility of regulating and enforcing the industry to prevent such accidents. Why are prosecutors getting involved?

These indictments come three years after the ValuJet disaster. During that time, the industry has seen an unprecedented increase in Federal Aviation Administration enforcement actions, particularly with regard to hazardous materials violations. Last year alone, the FAA levied a record $2,000.000 in fines for new HAZMAT violations. Recently the agency announced that it would seek $2.5 million in fines from SabreTech. These filings by the Florida prosecutors appear to be an indirect indictment of the perceived effectiveness of the FAA's enforcement activities.

Perhaps the success of various states in prosecuting corporations in the tobacco industry might have encouraged the sunshine state cops get into the aviation safety enforcement business — instead of their traditional role in pursuit of "Miami Vice."

Federal Laws With Criminal Sanctions for Actions Hazardous to Aviation Safety

There are numerous aviation laws which establish criminal sanctions for aviation-related misconduct which jeopardizes safety. Aviation professionals should take heed of the following sampling of statutes imposing criminal penalties:

• Transporting hazardous materials, 49 u.s. Code § 46312 (For example, partially filled and unguarded oxygen canisters);
   
• Transporting controlled substances without navigation and collision lights illuminated, 49 u.s. Code § 46315 (If you can't do the time, don't do the crime);
   
• Operating an aircraft into this country without proper registration, 49 U. S. Code § 46306 (Apparently more heinous than illegal immigration};
   

• Interference with the performance of the duties of a crew person on an air carrier, 49 u.s. Code § 1472(j). (Stay out of the way of the flight attendants);
   
• Use or possession of unauthorized aviation certificates, 18 u.s. Code § 1028, 506, 1019 (Is your license expired?)
   
• False statements with intent to defraud the government 49 u.s. Code § 47126: (Provisions allegedly violated by SabreTech workers);
   
  Criminal penalties for false statements. A person (including an officer, agent, or an employee of the United States Government or a public agency) shall be fined under Title 18, imprisoned for not more than 5 years, or both, if the person, with intent to defraud the Government, knowingly makes — (1) a false statement about the kind, quantity, quality, or cost of the material used or to be used, or the quantity, quality, or cost of work performed or to be performed, in connection with the submission of a plan, map, specification, contract, or estimate of project cost for a project included in a grant application submitted to the Secretary of Transportation for approval under this subchapter; (2) a false statement or claim for work or material for a project included in a grant application approved by the Secretary under this subchapter; or (2) a false statement in a report or certification required under this subchapter.
   
• Record keeping violations 49 u.s. Code 46310, (Provisions allegedly violated by SabreTech workers);
   
  Reporting and record keeping violations: (a) General Criminal Penalty — An air carrier or an officer, agent, or employee of an air carrier shall be fined under Title 18 for intentionally (1) failing to make a report or keep; a record under this part; (2) falsifying, mutilating, or altering a report or record under this part; or (3) filing a false report or record under this part. (b) Safety Regulation Criminal Penalty. — An air carrier or an officer, agent, or employee of an air carrier shall be fined under Title 18, imprisoned for not more than 5 years, or both, for intentionally falsifying or concealing a material fact, or inducing reliance on a false statement of material fact, in a report or record under § 44701(a) or (b) or any of §§ 44702-44716 of this title.
   
• Carrying/concealing a weapon or explosive on an aircraft, 49 u.s. Code § 46505 (The feds have no sense of humor about this!);
   
• Removing, concealing or withholding air crash wreckage 49 u.s. Code 1155(b) (Morbid souvenir hunters beware);
   
• Security violations on air carrier aircraft or airports, 49 u.s. Code § 46314 (Does this apply to airport X-ray attendants chatting among themselves in reckless disregard of safety?);
   
• Reckless conduct in the operation of an aircraft in disregard of human life, 49 u.s. Code § 46505 (This is criminal conduct different than the overuse of The "Careless and Reckless" Regulation by FAA enforcement lawyers );
   
• Intentional and knowing violations of any of the Federal Aviation Safety Regulations, 49 u.s. Code § 46316, 47306 (Proof of intent and actual knowledge is difficult).

A detailed analysis of each of these laws is beyond the scope of this article; however, it is incumbent upon each aviation professional to know the laws relevant to his job. These federal laws are mostly very specific. It is not hard to understand why they have been enacted and to visualize the type of conduct which is criminalized by the law. Greater confusion exists when prosecutors bring criminal charges with titles such as "involuntary manslaughter," "negligent homicide," or "third-degree murder" against aviation parties who might have been involved in a fatal "accident." These airmen or maintenance personnel may have been negligent but should they end up being charged with a crime that could lead to incarceration?

Standards of Liability

Civil Liability

Simple negligence is the least culpable level of legal liability. It is usually defined as the failure to exercise "ordinary care in the circumstances." Liability does not attach to such misconduct unless the negligence is a cause of injury or damages. In the aviation industry, the violation of regulations such as the FARs, and failure to comply with good operating practices or procedures, may constitute a breach of the duty to exercise ordinary care. In this regard, airline and Part 135 charter operators are held to the "highest duty of care" because they act as common carriers when holding themselves out to the public — they carry anyone for hire. Private operators on the other hand are generally held to the standard of "ordinary care."

Federal Aviation Administration enforcement actions involve a different type of civil liability. The FAA is empowered by the Federal Aviation Act to issue certificates and licenses to regulate the industry. As a result, the FAA can bring enforcement actions and revoke or suspend the certificates or issue civil penalties when there have been violations of their rules. These proceedings are administrative law proceedings and are not criminal in nature. Indeed the FAA itself cannot bring criminal charges against aviation professionals; the FAA must refer such charges to the u.s. Justice Department for prosecution.

Criminal Liability

Criminal liability is established by federal criminal statute and various state criminal laws. It is important to understand that every state has its own criminal laws, and these laws vary significantly from state to state. Further, the states are not preempted from enacting laws to impose criminal sanctions on aviation personnel who engage in reckless conduct leading to injury, death or property damage. As discussed previously, many federal criminal statutes relevant to aviation are quite straightforward. However, state criminal laws are often very confusing, especially when it comes to unintentional homicides. These laws present the greatest risk to the average aviation professional who has been exposed to criminal liability as a result of an accident which involves serious personal injury or death.

Some states have established criminal liability for unintentional homicide with an offense they call "criminal negligence." Other states punish negligent homicide as a form of "manslaughter." This charge is often called "involuntary manslaughter." These criminal charges require more than just simple negligence. In fact, most well-written state laws require more than "gross negligence" for a criminal prosecution.

A Model Penal Code has been adopted as law by some states. Under the Model Penal Code, a person can be criminally liable for "negligent homicide" if he created a risk of serious injury or death and "should have been aware" that he was creating such a risk by his conduct but nevertheless continued to act regardless of the foreseeable consequences.

Manslaughter is the next step up in criminal culpability for unintentional homicide. The Model Penal Code defines "manslaughter" as conduct which creates a substantial and unjustifiable risk of homicide, whereby the actor actually perceives the risk that he might kill somebody but ignores the risk and continues with the highly dangerous activity anyway. Many states do not make a distinction between negligent homicide and manslaughter. Instead, they have their own laws that criminalize conduct if it involves some form of "reckless, willful or wanton" misconduct beyond the level of simple negligence. Some states like Florida have a charge called "third-degree murder" for the unlawful killing of a person while engaged in an underlying felony. Florida Statute 782.04(4).

Criminal prosecutors and defense attorneys examine the case law in their jurisdictions to determine whether, under a particular set of circumstances, a certain type of conduct fits the definition of "negligent homicide," "manslaughter," or "third-degree murder." It should be apparent that such an evaluation is highly subjective. A criminal prosecutor can bring criminal charges against somebody who is involved in causing another person's death, while another prosecutor may exercise his discretion and refuse to bring criminal charges for the same misconduct. Typically after fatal air crashes, prosecutors allow the matter to be resolved as wrongful death litigation in the civil courts. In deciding whether to bring criminal charges prosecutors are sometimes influenced by political considerations, social pressures and a public outcry for justice after a particularly horrendous accident.

A Red Flag Signaling Criminal Issues: Liability Exposure for Punitive Damages

Serious air crash cases with fatalities do not normally result in the award of punitive damages. Plaintiffs typically settle with the defendants or obtain verdicts for compensatory damages to pay for their losses. To recover punitive damages in most jurisdictions, the plaintiffs must prove "willful, wanton or reckless" misconduct revealing "malice" by the defendants.

Where there is exposure to punitive damages, a prosecutor may find evidence to justify a criminal prosecution. The negligent homicide or manslaughter laws in many jurisdictions use a similar description for misconduct that is used in the laws describing liability for punitive damages.

Punitive damage exposure often comes from the cover-up of safety hazards or a pattern of intentional or reckless noncompliance with safety rules and regulations.

In operational situations, punitive misconduct may include low-level high-speed flight endangering people on the ground, operating aircraft while intoxicated, or the use of aircraft to threaten or intimidate people.

In the manufacturing context, punitive damage exposure can result from intentional or reckless misrepresentations concerning the safety of products, the cover-up of design or manufacturing defects, maintenance malpractice involving the knowing use of unapproved parts or substandard materials, and the falsification of the airworthiness of an aircraft.

Have Prosecutors Successfully Convicted Aviators in the Past?

Contrary to the Miami press; the prosecution of SabreTech and its maintenance personnel is not an unprecedented event in aviation. There have been many prosecutions of aviators. Some have been quite newsworthy; however, the aviation personnel involved have usually been acquitted.

The Twilight Zone Case

In 1983, criminal charges of involuntary manslaughter were filed against famous director John Landis, production coordinator Paul Stewart and pilot Dorsey Wingo, for the deaths of actor Vic Morrow and two child actors resulting from the crash of a "Huey" Helicopter during the filming of "Twilight Zone — The Movie" in Los Angeles. I defended the pilot in all civil litigation and during the criminal preliminary hearings.

The Twilight Zone crash occurred during the filming of a scene involving a make-believe Vietnamese village. The helicopter operated by my client was hovering over a river adjacent to the village during the filming of a nighttime heavy ordnance attack against the village. The National Transportation Safety Board found that a special-effects detonation damaged the tail rotor of the helicopter, causing it to go out of control. The persons aboard the helicopter survived with minor injuries; however, actor Vic Morrow and the two child actors were killed when the inverted helicopter came down upon them. The special-effects technician who set off the explosion told the National Transportation Safety Board and the grand jury, while testifying under a grant of immunity, that he only paid attention to the location of the actors and not the helicopter when he fired the charges. The trial, which received intensive publicity, resulted in the acquittal of all parties concerned.

Other Examples

There are many other criminal cases involving less newsworthy participants. For example, an early case in California resulted in prosecution of a pilot who "buzzed" a California beach, lost an engine and crashed, killing some sunbathers. The pilot was convicted; however, the appellate court reversed the conviction because evidence of other instances of low altitude flying by the defendant was improperly admitted into evidence.

New York City authorities also tried to prosecute a pilot for manslaughter when he ran out of fuel, attempted a forced landing near the Coney Island resort but crashed, resulting in fatalities on the ground. The case was thrown out because of the lack of sufficient criminal culpability convert an accident to a crime.

Typically, the use of alcohol or drugs in connection with a fatal flying accident creates a high risk of criminal liability. In an Iowa case, a pilot who went out drinking with his passenger before flying was convicted of manslaughter when he struck high wires near an industrial plant and his passenger died in the crash.

Although not an aviation case, one of the most famous prosecutions of a corporation and its executives was the Indiana v. Ford Motor Company "Pinto" case. The Indiana prosecutors had evidence that the company's management knew of the possibility that the Pinto automobile's gas tank was vulnerable and might explode if struck from behind, but refused to make safety improvements to save money. The Ford Motor Corporation and its managers were prosecuted for reckless homicide but acquitted by the jury.

Avoiding Criminal Prosecution for an Aviation Accident

Witnesses do not have to give statements that may expose them to criminal liability! All witnesses have the Fifth Amendment right to refrain from saying anything that might incriminate them. All persons have the right to hire an attorney to protect them. One can seek the advice of an attorney at anytime, before or during an investigation.

What Are the Rights of a Witness During an NTSB Investigation?

The National Transportation Safety Board has exclusive jurisdiction to investigate serious civilian aircraft accidents in the United States. An NTSB investigator can "interrogate" crew members, passengers, maintenance personnel and other witnesses by simply showing his credentials and demanding an interview. During the NTSB investigator's interview, he can obtain a statement from a witness without advising him of his Miranda rights (right to remain silent, right to use an attorney, etc.). The NTSB investigator does not have to advise the witness of his right to have an attorney present. The NTSB investigator is conducting a safety investigation and not a police investigation. More important, The u.s. Supreme Court has ruled that Miranda rights are not required in "non-custodial" civil investigations. People in aviation should know of their right to seek the advice of an attorney before giving a statement to the NTSB investigator. Neither an NTSB investigator's badge or a subpoena obtained by the National Transportation Safety Board overrides an individual's constitutional right to refuse to answer a question that may tend to incriminate him.

Investigative Statements Can Be Used to Incriminate

Statements taken by the NTSB investigator can be used for FAA enforcement purposes, for civil litigation and for criminal prosecution. Does this mean that witnesses should not cooperate with NTSB investigators? No! It only means that you proceed at your own risk if you give an unrestricted statement to an investigator without first seeking advice of counsel.

Did Anyone Tell the SabreTech Workers About the Privilege Against Self-Incrimination Before They Gave Statements?

News reports about the SabreTech case suggest that the maintenance workers, who face the possibility of imprisonment if convicted, made admissions when interrogated by a Safety Board investigator. The investigator took a statement from them about whether they had replaced "safety" caps on the oxygen canisters that were believed to have caused or contributed to the ValuJet accident. Supposedly the maintenance contractors admitted that they didn't use the required shipping caps that should have been installed on the oxygen canisters. These maintenance employees supposedly signed off various maintenance forms verifying that the safety caps guarding the firing pin had been installed. If these news reports are accurate, one must wonder whether the workers would have been prosecuted if their statements did not contain these admissions, and whether they had advice of counsel before giving their statements?

NTSB Investigative Statements Can Be Used as Evidence

The NTSB investigator is not trying to trap a witness in a criminal violation. He is conducting an investigation to determining probable cause to enhance safety. The problem is that the statement he takes becomes part of an NTSB accident report, and that NTSB accident report is fully discoverable by any person who wants to use it, including a prosecutor. Furthermore, NTSB reports, except for the probable cause determination, have usually been admitted into evidence in civil and criminal litigation. (The United Airlines DC-10 disaster in Sioux City was a notable exception.)

The fact of the matter is the NTSB investigator cannot predict the eventual use of the statement he obtains. He is in no position to advise you or assure you of whether the statement you give may result in the revocation of your certificate, civil liability or criminal charges.

In Police Investigations, a Suspect Is Warned of His Rights — But Witnesses Are Not Typically Warned in Civil Investigations

My comments apply not only to the National Transportation Safety Board investigations but also to Federal Aviation Administration investigations and, for that matter, to investigations by any agency of the federal or state government not performing a police function. Thus, the Forest Service, Coast Guard, NASA, Department of Agriculture, Department of Commerce or any other agency may conduct an air crash investigation under their own regulations and their investigators may take a statement from an aviation professional. The statement may end up becoming evidence in the hands of an FAA enforcement official or a criminal prosecutor.

Interestingly, I rarely see an NTSB report in which crew members or maintenance personnel have refused to give a statement to the investigator on the basis of the Fifth Amendment. On the other hand, I have seen many military investigative reports (the releasable versions) in which crew members or maintenance personnel have invoked the Fifth Amendment and refused to give statements. I believe that the reason is that military personnel have the benefit of free legal counsel during investigations, whereas civilians normally have to retain an attorney and pay him for advice.

Under What Circumstances Can the Fifth Amendment Privilege Be Invoked?

Military and civilian lawyers know that incrimination risk need not be great for a person to invoke the privilege. A witness doesn't even have to know that the words he uses will incriminate him. It is enough that the statement may lead to incriminating evidence. Lawyers often advise the use of the privilege because they know that a failure to assert the privilege in a timely fashion may result in the waiver of the privilege.

Does the Privilege Against Self-Incrimination Apply to FAA Investigations?

Should an aviation professional refuse to answer questions from a Federal Aviation Administration investigator? Not necessarily! FAA investigations leading to enforcement actions are not considered to be criminal in nature. The National Transportation Safety Board has ruled that the Respondent in an FAA enforcement action does not have a right to invoke the Fifth Amendment for fear of the FAA's sanctions. (Remember, the FAA cannot enforce criminal penalties). However, if the FAA interrogation may lead to both civil and criminal liability, then the Respondent, after consultation with an attorney, may be justified in asserting the Fifth Amendment to protect against incrimination.

Can a Witness Assert the "Privilege" in NTSB Investigations?

If all aviators were to refuse to give statements based upon the Fifth Amendment privilege against self-incrimination, the Board would be hamstrung in its efforts to conduct safety investigations to determine probable cause. On the other hand, the Constitution protects an individual from being compelled to give a statement that may incriminate him. When to assert "the Fifth" is a tough question that can only be properly answered under the particular circumstances involved, with the confidential advice of counsel.

Witnesses May Be Forced to Give Testimony Under Subpoena, But They Can't Be Forced to Incriminate Themselves

As long as the person is merely a "witness" and not an "accused," he may under some circumstances, be forced to give testimony. Thus, a "witness" may be compelled by subpoena to take the witness stand, swear the oath, and respond to questions in hearings, investigations, official inquiries and administrative proceedings. The "witness" just can't be forced to answer those questions which might incriminate him. Most attorneys would recommend that anyone who is faced with serious personal liability should seek the advice of an attorney, under the confidence of the attorney-client privilege, before giving testimony and before deciding to give an unrestricted statement.

Won't It Look Bad to Consult a Lawyer or Assert the Fifth Amendment?

People fear that the use of an attorney, will result in an assumption by federal investigators that the individual has something to hide. First, be aware that most NTSB and FAA investigators are accustomed to people consulting with lawyers. Second, if you find yourself in a compromising situation, which is worse: creating a suspicious impression, or unnecessarily exposing yourself to criminal or civil liability? Third, neither a prosecutor nor a judge may comment on the assertion of the privilege in a criminal case. Further, in many states no negative inference may be drawn in civil litigation because an individual has asserted his Fifth Amendment right against self-incrimination. However, this is not the rule across the board. Some states do allow a jury in a civil case to consider a party's invocation of that privilege, while others do not. Also consider that there are public-relations issues for aviation professionals and their employers when the privilege is asserted. Thus, I can't overemphasize the need to consult with an attorney before asserting the privilege.

Safety Investigations Can Proceed Without Criminal Exposure

There is a way in which the NTSB investigator and FAA investigator can achieve their safety objectives while nonetheless not exposing the person being interviewed to criminal liability. Immunity can be granted by the u.s. Department of Justice that will protect the individual against criminal prosecution if they should divulge information which incriminates them. There are two types of immunity: "Transactional immunity" protects a person from prosecution from any action about which he or she has testified. (Remember, Monica Lewinsky obtained "transactional immunity," which is the broadest form of protection.) Prosecutors are usually reluctant to grant "transactional immunity," and prefer only to give "use immunity" which covers the person for the matter at issue.

The Privilege Against Self-Incrimination Only Applies to Compelled "Testimonial" Incrimination

The u.s. Supreme Court has held that a witness may have to comply with a subpoena ordering him to produce papers, books, tapes and even bodily fluid samples — even though such things may incriminate him — because these "things" are not compelled "testimony." Such things can be obtained by investigators with a subpoena.

Those who hold an FAA license or certificate are required to turn over reports, log books, documents, certificates or other such records, even without the need for a subpoena. The Federal Aviation Administration, pursuant to the regulations promulgated under the Federal Aviation Act, has the power to demand that records that are created in compliance with the FARs be made available for inspection. Such inspections are considered "regulatory" in nature and are not "criminal" investigations"; thus, they cannot usually be prevented by the assertion of the right against self-incrimination.

Conclusion

Authorities in Florida are sending a message that they believe will help prevent the recurrence of another ValuJet disaster. Perhaps their prosecutorial zeal may impair the NTSB's ability to obtain prompt and complete statements from individuals. The chilling effect of such prosecutions may inhibit the NTSB's ability to determine probable cause and prevent future accidents, not to mention the increase of attorneys fees expended to safeguard against criminalization after accidents.

Federal and state resources might better be spent on education to prevent slipshod maintenance practices. Perhaps the real message from Miami is a lack of confidence that the FAA can successfully enforce maintenance compliance with airworthiness safety standards. I find it interesting that the Federal Aviation Administration, which is apparently in possession of a lot of the same evidence as the prosecutors, reinstated the license of one of the SabreTech suspects. Let's also not forget that the National Transportation Safety Board determined that the Federal Aviation Administration was one of the parties at fault in causing this crash.

NOTE: The issues discussed in this article do not constitute legal advice. My objective is to alert you to some common issues so that you can avoid or minimize legal trouble. Anyone with an aviation law problem should be guided by the advice of his or her lawyer, under applicable federal and state laws, after a full and confidential disclosure of all relevant facts.