Courtesy Ashgate Publishing | Foundations of Aviation Law Michael W. Pearson and Daniel S. Riley © (paperback) (hardback)

Courtesy Ashgate Publishing | Chapter 8 Aviation Criminal Law Foundations of Aviation Law

Courtesy Ashgate Publishing | Chapter Objectives After reading this chapter, you should: understand the importance of actus reus and mens rea in criminal law; understand the recent history of criminal law in regards to aviation accidents; have a working knowledge of federal criminal law statutes as they relate to aviation; understand how state criminal law may apply to aviation accidents.

Courtesy Ashgate Publishing | Aviation Criminal Law This chapter will review criminal law as applied to aviation. A crime is the violation of laws or regulations for which some legitimate governing authority can prescribe a conviction. Crimes require a guilty act, or actus reus, in combination with a requisite mental state or guilty mind, known as mens rea. If a person were charged with negligent homicide, most domestic jurisdictions would define the crime as killing a human being through gross negligence. Gross negligence means conduct that grossly deviated from ordinary care. The act is the killing of a human being and the mental state is the gross negligence. A form of negligent homicide has been charged in aviation accident cases in foreign jurisdictions. The practice of accidents being charged as crimes has sparked an ongoing debate in the aviation arena.

Courtesy Ashgate Publishing | Aviation Criminal Law Origins of Criminal Prosecution The first known criminal prosecution against parties involved in aircraft accidents, such as pilots, airlines, maintenance providers, air traffic controllers, and others, occurred in On October 8, 1979, a Swissair flight crashed in Athens, Greece due to overshooting the runway on landing. Fourteen passengers were killed. The Greek prosecutors brought negligent manslaughter, negligent bodily injury, and disrupting the safety of air services charges against the captain and the first officer. Both pilots received sentences of four years’ imprisonment, which was later converted into a fine.

Courtesy Ashgate Publishing | Aviation Criminal Law ValuJet Flight 592 Criminal Indictment ValuJet Flight 592 took off from Miami International Airport on May 11, 1996, and 11 minutes later spiraled into the marsh after the pilot reported that black smoke had begun to fill the cabin and cockpit killing all 110 people on board. An NTSB investigation found that the crash was caused by a fire that broke out in the cargo compartment among 144 oxygen canisters that were improperly secured, labeled, and packaged by SabreTech. SabreTech Inc. was charged with 110 counts of third-degree murder, 110 counts of manslaughter and one count of illegal transportation of hazardous waste. Three company employees were also charged with various crimes in a separate federal indictment. The NTSB concluded that SabreTech, ValuJet and the Federal Aviation Administration shared responsibility for the crash. ValuJet was a start- up airline that the FAA had failed to properly regulate, the NTSB said.

Courtesy Ashgate Publishing | Aviation Criminal Law International Criminal Prosecutions Brazilian Prosecution (September 2006) On September 29, 2006, Americans Joe Lepore and Jan Paladino were involved in a mid-air collision over Brazil. Lepore and Paladino were flying an Embraer Legacy 600 executive jet when they collided with a Boeing 737 with 154 people on board. Lepore and Paladino safely landed their jet, but the 737 crashed with no survivors. Brazilian officials blamed Lepore and Paladino’s negligence for the collision and originally charged them with endangering an aircraft. US officials blamed Brazil’s shoddy ATC systems for the collision. The NTSB and the Brazilian equivalent found both the air traffic controllers and the pilots to be at fault. Lepore and Paladino were criminally charged with negligence because their aircraft’s transponder was not on.

Courtesy Ashgate Publishing | Aviation Criminal Law International Criminal Prosecutions Swiss Prosecution (July 2002) On July 1, 2002 a passenger jet carrying 57 passengers, mostly children, and 12 crewmembers collided in mid-air with a DHL cargo jet manned by two pilots over the towns of Überlingen and Owingen in southern Germany. All 71 people on board the two aircraft were killed. Despite the accident occurring over Germany, the private Swiss ATC company Skyguide controlled the airspace from Zürich, Switzerland. The German Federal Bureau of Aircraft Accidents Investigation determined that the accident was caused by shortcomings in the Swiss ATC system as well as onboard aircraft collision avoidance system ambiguities. Swiss prosecutors filed manslaughter charges against eight employees of Skyguide.

Courtesy Ashgate Publishing | Aviation Criminal Law International Criminal Prosecutions Italian Prosecution (October 2001) The Linate Airport disaster occurred on October 8, A Scandinavian Airlines aircraft collided on departure with a Cessna Citation business jet that taxied onto the active runway without clearance due to heavy fog at Linate Airport in Milan, Italy. All 114 people on the two aircraft were killed, as well as four on the ground. The investigation revealed that the “immediate cause” of the accident was the incursion of the Cessna onto the active runway without ATC clearance. Blame was also placed on the airport layout and air traffic procedures. Four people including the air traffic controller working at the time were charged with negligence and manslaughter.

Courtesy Ashgate Publishing | Aviation Criminal Law International Criminal Prosecutions French Prosecution (2000) An Air France Concorde crashed on July 25, 2000, shortly after takeoff from Charles de Gaulle International Airport. All 109 passengers and crew aboard the flight were killed, in addition to four people on the ground. French investigators determined that the accident was caused by a titanium strip on the runway that had fallen off a Continental Airlines aircraft that had departed just prior to Air France’s departure. According to the investigation, the titanium strip created debris that damaged the plane’s fuel tanks and caused an explosion. Continental Airlines mechanics used the titanium strip to replace an aluminum strip, which was unauthorized by FAA regulations, according to the French investigation. Manslaughter charges were filed against Continental Airlines, two of its mechanics, two workers at Concorde, and one French civil aviation authority official.

Courtesy Ashgate Publishing | Aviation Criminal Law International Criminal Prosecutions French Prosecution (January 1992) On January 20, 1992 an Air Inter Airbus A320 crashed into the Sainte-Odile mountain as it approached Strasbourg Airport in eastern France. There were 87 fatalities and nine survivors. The accident investigation failed to identify a single reason for the accident. Potential causal factors included the quality air traffic guidance that the plane was given to direct it towards Strasbourg and the composition of the flight crew. Six people were criminally charged with manslaughter.

Courtesy Ashgate Publishing | Aviation Criminal Law International Criminal Prosecutions US Prosecutions With the exception of ValuJet, there have not been additional criminal prosecutions of air carriers or their employees due to accidents. Air traffic controllers have never been criminally prosecuted in the US because of an aviation accident case. However, other criminal prosecutions have occurred. An investigation of a fiery plane crash at a small New Jersey airport culminated in convictions for two brothers accused of skirting safety regulations as they ran a charter jet company. Michael and Paul Brassington were convicted of fraud conspiracy in their operation of the Fort Lauderdale, Fla.-based Platinum Jet Management between 2002 and 2005.

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law Investigation Considerations The NTSB has priority over any investigation by another department, agency, or instrumentality of the US government. However, this jurisdiction is not exclusive. Investigations by other governmental entities often run concurrently with an NTSB accident investigation. Accordingly, other investigative entities frequently undertake criminal investigations and prosecute misconduct related to accidents being investigated by the NTSB. Crimes committed onboard an en-route flight generally fall under federal jurisdiction, but may fall under another countries’ jurisdiction or even state jurisdiction depending on the choice of law factors.

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law Federal Offense Examples Title 49, Chapter 465 makes all of the following conduct a federal offense if committed within the Special Aircraft Jurisdiction of the US: assault (18 U.S.C. §113); maiming (18 U.S.C. §114); receipt of stolen property (18 U.S.C. §662); murder (18 U.S.C. §1111); manslaughter (18 U.S.C. §1112); attempted murder or manslaughter (18 U.S.C. §1113); robbery (18 U.S.C. §2111); and sexual abuse (Chapter 109A).

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law Aviation-Specific Violations –Entering Aircraft or Airport Area in Violation if Security Requirements (49 U.S.C. §46314) –Carrying a Weapon or Explosive on an Aircraft (49 U.S.C. §46505) –False Information (49 U.S.C. §46302) –Interference with Flight Crewmembers and Attendants (49 U.S.C. §46504) –Aircraft Piracy (49 U.S.C. §46502) –Violation of National Defense Airspace (49 U.S.C. §46307) –Registration Violations Involving Aircraft Not Providing Air Transportation (49 U.S.C. §46306)

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law Aviation-Specific Violations –Criminal Penalty for Pilots Operating in Air Transportation without an Airman’s Certificate (49 U.S.C. §46317) –Transporting Hazardous Material (49 U.S.C. §46312) –Lighting Violations Involving Transporting Controlled Substances by Aircraft Not Providing Air Transportation (49 U.S.C. §46315) –Interference with Air Navigation (49 U.S.C. §46308) –Interference with Security Screening Personnel (49 U.S.C. §46503) –Application of Certain Criminal Laws to Acts on Aircraft (49 U.S.C. §46506) –Fraud Involving Aircraft or Space Vehicle Parts in Interstate or Foreign Commerce (18 U.S.C. §38)

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law US v. Parker Robert Parker and two co-defendants were accused of improperly overhauling small aircraft engines and falsely representing to customers that the engines met FAA requirements. After a jury trial, Parker was convicted on five counts for his role in the scheme. The counts included conspiracy, three counts for aiding and abetting or making or using false writings in connection with aircraft parts, and one count for mail fraud. The district court sentenced Parker to 72 months in prison and ordered him to pay $378,633 in restitution. Parker appealed his conviction.

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law Aviation-Specific Violations –Operation of a Common Carrier under the Influence of Alcohol or Drugs (18 U.S.C. §342) –Destruction of Aircraft or Aircraft Facilities (18 U.S.C. §32) –Violence at International Airports (18 U.S.C. §37)

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law The FAA and Criminal Law The FAA decides when to refer a violation to the Department of Transportation Office of Inspector General (OIG) for criminal investigation. The Department of Transportation OIG has federal statutory authority to investigate all allegations of criminal activity relating to the Department of Transportation’s programs, operations, or administrations. If the FAA suspects a criminal violation may have occurred, it will coordinate internally with any affected program’s offices, the Office of Security and Hazardous Materials, and FAA legal counsel. Criminal investigations can be independently or jointly conducted.

Courtesy Ashgate Publishing | Aviation Criminal Law Federal Law Interagency Investigations An recent example of an interagency investigation and criminal prosecution involves FAA medical certification. Individuals wishing to gain an FAA medical certificate are required to give the FAA written permission to search the National Driver Registry for traffic violations. The FAA, the Department of Transportation Office of Inspector General, and the Social Security Administration (SSA) used this interagency exchange of information in coordination with the US Attorney’s Office in a controversial program called Operation Safe Pilot. The Operation Safe Pilot program of Northern California was a joint criminal investigation conducted by the SSA, the Department of Transportation and the FAA to reveal any medically unfit individuals with FAA certifications to fly.

Courtesy Ashgate Publishing | Aviation Criminal Law State Law Federal and state authorities may have concurrent jurisdiction when crimes related to aviation are committed. Concurrent jurisdiction is the ability of different courts to exercise jurisdiction at the same time over the same subject matter. Some states have established aviation-specific criminal laws. For example, the crime of reckless endangerment of others could apply to aircraft operators who create a hazard to persons on the ground. In the case of a death involving aircraft, state authorities, depending on the jurisdiction, may charge criminal negligence, involuntary manslaughter, manslaughter, or third degree murder. Other laws range from misdemeanors to felonies depending on the activity.

Courtesy Ashgate Publishing | Chapter 8 Review Questions 1.In which jurisdiction did the first known criminal prosecution relating to an aviation accident occur? 2.What is “just culture”? 3.Which US agency has investigative priority? 4.List three federal statutes that pertain to aviation. Describe what each one penalizes. 5.What does Special Aircraft Jurisdiction of the US mean?

Courtesy Ashgate Publishing | Chapter 8 Review Questions 6.Who does the FAA initially refer potential criminal activity cases to? 7.What is criminal immunity? Describe criminal “use” immunity. 8.What does concurrent jurisdiction mean? 9.What was the “origin” of criminal prosecution resulting from aviation accidents?