In the wake of the criminal indictments against SabreTech, Inc., and three of its employees in the wake of the ValuJet crash, AVweb's aviation law editor Phil Kolczynski takes a look the circumstances in which an aviation professional can have criminal liability, and explains some of the measures available to protect against criminal liability exposure. If you make your living in aviation, you really need to read this.
December 28, 1999
|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
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
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
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
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.
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."
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
- 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
- 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
- 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
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
- 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?
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 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
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.
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
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.
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.
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.
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
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
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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 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
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.
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.