Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.29 Page 1 of 9

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1 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.29 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, No. 1:16-cr-178 v Hon. Robert Holmes Bell SEAN MICHAEL FITZGERALD, Defendant. BRIEF IN SUPPORT OF DEFENDANT FITZGERALD S MOTION TO DISMISS INDICTMENT Defendant is charged with a single count of a violation of 18 U.S.C. 342: Whoever operates or directs the operation of a common carrier while under the influence of alcohol or any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802), shall be imprisoned not more than fifteen years or fined under this title, or both. Section 342 is part of Chapter 17A of Title 18 that is entitled Common Carrier Operation under the Influence of Alcohol or Drugs. There are two companion statutes: 18 U.S.C. 341 and 343. Section 341 defines common carrier to include an air common carrier. Under 343(1), a blood alcohol content of.10 or greater creates a presumption of being under the influence. Two things to note: first, the term operate is not defined; and second, there is no attempt provision. Instead, only the actual operation of the common carrier is prohibited. The indictment itself is one sentence. Page ID 6. It alleges that on August 25, 2016, defendant operated a Challenger 604 aircraft (hereafter aircraft ) on the tarmac of Cherry Capital

2 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.30 Page 2 of 9 Airport in Traverse City while possessing a blood alcohol of.343 percent. The basis for this motion is that as a matter of law, the undisputed facts demonstrate that defendant did not operate the aircraft on August 25. At no time: (1) were the aircraft s engines started; (2) were any passengers on board the aircraft; (3) was the aircraft s door closed; (4) was clearance to move the aircraft attempted or given; (5) was the aircraft moved; (6) were the wheel chalks removed; and (7) were the pilot/captain and defendant seated in the cabin together. Indeed, the pilot/captain, the person with ultimate control of the aircraft, had determined that the aircraft was going nowhere because of defendant s intoxication. ARGUMENT I. DEFENDANT DID NOT OPERATE THE AIRCRAFT AS A MATTER OF LAW A. PRETRIAL MOTION TO DISMISS The Sixth Circuit subscribes to the rule that motions to dismiss under Fed. R. Crim. P. 12(b) are appropriate if undisputed facts establish that the offense charged cannot be proven as a matter of law. United States v. Levin, 973 F.2d 463 (1992). In making such a determination, the district court can look to facts beyond those contained in the indictment so long as it does not invade the province of the fact finder. Id. at 467. This is true regardless of whether the indictment states an offense. Id. at 469. Where there is undisputed extrinsic evidence showing that the government is incapable of proving the elements of the offense beyond a reasonable doubt as a matter of law, dismissal is proper. Id. In Levin, the Sixth Circuit upheld the dismissal of counts in a health care fraud case where official letters from the Health Care Financing Administration (HCFA) sent to the defendants told the defendants that what they were doing was permissible under the law. Under these circumstances, 2

3 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.31 Page 3 of 9 and because there was undisputed extrinsic evidence in the form of the HCFA letters, the defendant s reliance on those letters made it impossible for the government to prove an intent to defraud as a matter of law and the charges were dismissed. In United States v. Ali, 557 F.3d 715 (6th Cir. 2009), the Sixth Circuit reaffirmed the use of a Rule 12(b) motion to dismiss when the lack of proof on an element can be determined as a matter of law. At issue in Ali was whether the defendant knowingly lied on a citizenship application when he answered no, to the question of whether he had been married to more than one person at the same time. Evidently, he was married to someone new while there some legal question as to whether his prior marriage was officially dissolved. This was something capable of determination as a matter of law and was an appropriate basis for a pretrial motion to dismiss. The Sixth Circuit stated, [a] Rule 12 motion is appropriate where it raises questions of law rather than fact and Ali 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. Ali, 557 F.3d at The Court went on to analyze the divorce laws that were applicable to the undisputed facts and found that dismissal was not appropriate because as a matter of law, the earlier marriage was not dissolved. B. THE FACTS Defendant was the copilot of the aircraft. The pilot/captain was Manny Ramirez. Both worked for Talon Air (Talon), a private charter company located in New York. On August 25, the aircraft was supposed to fly from Traverse City, Michigan to Bedford, Massachusetts with three passengers. Two days earlier, it had flown from Bedford to Traverse City with the same three passengers who apparently came to the Traverse City area to play golf. 3

4 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.32 Page 4 of 9 The relevant events of the morning of August 25 are undisputed. They are revealed in the discovery materials, including one video of the area where the aircraft was situated and another video of the office/lobby and hanger area of AV Flight, the Forward Base Operator (FBO) that essentially acts as the terminal for charter flights. There also is an audio tape of a conversation between defendant and the airport tower and numerous witness interviews and other reports. Although details may be disputed, such disputes are not material to this motion. This factual description is based entirely on the government s own discovery material. Shortly before 7:00 a.m. on the 25th, Mr. Ramirez drove a rental car with defendant as a passenger from their Traverse City motel to the AV Flight. During the ride, Mr. Ramirez smelled alcohol from defendant and also saw that his eyes were bloodshot and he was pale. When asked by Mr. Ramirez, defendant denied drinking alcohol. After they arrived at AV Flight, Mr. Ramirez called Talon and told Talon that defendant had been drinking. Talon called Ramirez back and first said that both defendant and Ramirez would be tested for alcohol. Talon then called again and said that because the closest testing facility was two hours away, Talon was calling the local police about defendant s condition and asking the police to respond to AV Flight. Talon called the local police at about 7:36 a.m. and a dispatch was sent out immediately about defendant s suspected intoxication. Mr. Ramirez was not going to allow defendant to do anything meaningful that morning. He had no intent to move the aircraft with defendant. Ramirez never sat with defendant in the cockpit and the pre-flight preparations were, according to Ramirez, only about 30% completed. Defendant had spoken to the tower for the routing information and the tape of the conversation shows that defendant had difficulty following/repeating the information. The tower itself was notified of defendant s condition well before the police arrived. 4

5 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.33 Page 5 of 9 When Sergeant Drzewiecki of the Traverse City Police Department arrived, he found defendant seated alone in the cockpit area with his headphones on and, according to the Sergeant s police report: appearing to be, what I believe to be making pre-flight checks of gauges. Defendant emitted a strong odor of alcohol and his eyes were watery and bloodshot. Defendant completely failed the follow the finger test. When asked, defendant seemed puzzled by the claim that he was under the influence, claiming that his only recent alcohol consumption was two beers at lunch the previous day. Two PBT tests were performed and both showed an unusually high reading of over.30. These results were confirmed, actually increased, in a blood test done later. 1 2 At no time were the aircraft s engines started; were the passengers on board; was the aircrafts s door closed; was clearance requested or given to move the aircraft; was the aircraft moved; were the wheel chalks removed; were Mr. Ramirez, the pilot/captain, and the defendant seated in the cockpit together; and, did Mr. Ramirez ever intend to operate the aircraft with defendant. Defendant s only activities were to get routing information from the tower; turn on the auxiliary power unit that allowed radio communication to the tower and lights in the cabin; inspect the outside of the aircraft; and took coffee (although he had difficulty holding the thermos) and some baggage to the aircraft. That same day, defendant was charged in state court (86th District Court) with an attempt 1 In one version of his affidavit supporting the search warrant for the blood test, the Sergeant said the engines were running when he arrived. In an earlier version of the affidavit, this statement was absent. It is undisputed that the engines were not running. Mr. Ramirez and the ground crew confirm that they were not running. 2 The federal Complaint mistakenly states that [t]he passengers were loaded on the plane during the preflight preparation. Page ID 3. That is inaccurate. The evidence, including the witnesses and videos, show that the passengers were not on board. Indeed, the video of the terminal, going from 6:00 a.m. - 8:00 a.m., never showed the passengers arrive at all. The video of the plane showed no passengers and this video covered the time through the police leaving the scene with defendant in custody. The affiant of the Complaint was not present on August 25. 5

6 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.34 Page 6 of 9 to act as a crew member of an aircraft while having a blood alcohol content of.02 percent or 3 greater. This is a violation of MCLA (2). Because there were no injuries, damages or prior convictions, this offense is a 93-day misdemeanor. MCLA (6). Defendant was arraigned and released on bond with strict conditions about no alcohol use and no flying of any aircraft. While this state charge was pending, the federal Complaint was filed. The state charge was dismissed without prejudice after defendant s federal indictment and arraignment. C. TO OPERATE The term operate is not defined in Chapter 17A of Title 18 or anywhere else in Title 18 that defense counsel can find. Indeed, there are very few cases interpreting 342 generally. The reported cases all concern prosecutions when the aircraft was actually in flight. United States v. Cope, 676 F.3d 1219 (10th Cir. 2012); United States v. Prouse, 945 F.2d 1017 (8th Cir. 1991). A somewhat analogous area in federal law is the regulation against drunk driving in National Parks, a Class B misdemeanor. This regulation is found in 36 C.F.R and prohibits [o]perating or being in actual physical control of a motor vehicle while being intoxicated. There are few cases on this regulation. In United States v. McFarland, 445 F.3d 129 (1st Cir. 2006), the defendant was charged with being in physical control of a motor vehicle, not operation of a motor vehicle. Defendant was found in his pickup truck, sitting in the driver s seat and apparently passed out. The key was in the ignition and the front hood was warm. Marijuana and largely consumed bottles of alcohol were within McFarland s reach. The court assumed/found that actual physical control means something short of operation and found the above facts to be sufficient to establish 3 A copy of the Misdemeanor Complaint is attached as Exhibit A. 6

7 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.35 Page 7 of 9 actual physical control of the vehicle. In the less analogous, but more familiar area of operating a vehicle while intoxicated under Michigan law, operating means being in actual physical control of a vehicle... regardless of whether or not the person is licensed under this act as an operator. There is a line of cases involving a defendant who is found in a car that is running but not in motion. E.g. People v. Wood, 538 N.W.2d 351 (1995); People v Lechleitner, 804 N.W.2d 345 (2010). There also are cases where a defendant is found in a car that is not running, but there is ample evidence to show that defendant had been operating it. People v. Solomson, 683 N.W.2d 761 (2004); People v. Schinella, 407 N.W.2d 621 (1986). A dictionary definition of operate is [t]o run or control the functioning of. American Heritage Dictionary of the English language 1233 (4ed 2000). Under Title 49, dealing with Transportation generally and specifically including Aviation Programs, the term operate aircraft means using aircraft for the purpose of air navigation, including the navigation of the aircraft or causing or authorizing the operation of aircraft with or without the right of legal control of the aircraft. 49 U.S.C (a)(35). The Code of Federal Regulations has something similar, saying that to operate an aircraft means use, cause to use or authorize to use aircraft, for the purpose (except as provided in of this chapter) of air navigation including the piloting of aircraft, 4 with our without the right of legal control (as owner, lessee, or otherwise). 14 CFR 1.l. The Michigan statute under which defendant was first prosecuted says operate aircraft means use of aircraft for purpose of air navigation, including navigation or piloting of aircraft. MCLA 259.6(e). 4 The FAA itself has a regulation, FAR 91.17, that prohibits any person to act as a crew member of an aircraft within eight hours of consuming alcohol; to be under the influence of alcohol; or to have an alcohol concentration of.04 or greater. Violation of this rule includes loss of certification to fly. 7

8 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.36 Page 8 of 9 It is not required here to unravel these sometimes circular definitions that are used in other statutes or rules. The precise parameters of the term operate need not be set here. Nor need the defense insist that operate is limited only to when the aircraft s engines have started, or the aircraft is moving or even when the aircraft is in flight, a term defined in 18 U.S.C. 31(a)(4) to cover the period when the external doors are closed and then reopened. Although these factors are relevant, defendant under the undisputed facts here cannot be considered to have operated the aircraft under any reasonable broader definition of that term his actions fall well short of that mark. The question of whether defendant attempted to operate the aircraft is admittedly a closer one. But an attempt is not covered by this federal statute. The government has said it is relying on a 2006 opinion from a court of appeals in the state of Florida, Hughes v. State, 943 So.2d 176; 2006 Fla. App. LEXIS (2006). In Hughes, both the pilot and co-pilot of a commercial aircraft were convicted of violating a Florida statute prohibiting the operation of an aircraft in the air or on the ground or water while intoxicated or in a careless or reckless manner. Fla. Statute Hughes involved facts very different than our case. In Hughes, while walking to the aircraft, the captain and co-pilot were observed by ground personnel to show signs of intoxication and the police were notified. When the police arrived, both the captain and the co-pilot were in the cockpit and in actual physical control of the aircraft; all 128 passengers were on board; the jetway had been pulled back from the aircraft; the aircraft door was closed; the aircraft was connected, per the captain s orders, to the tug that pushed it from the gate; the captain and co-pilot activated all the extensive preflight systems and these systems were tested and inspected; and, critical information had been entered into the aircraft s computer. 8

9 Case 1:16-cr RHB ECF No. 16 filed 12/02/16 PageID.37 Page 9 of 9 After considering the same dictionary definition of operate described above, as well as the CFR quoted above, the Court concluded that the facts were sufficient to prove that both defendants operated the aircraft. The Court specifically rejected the defendants argument that they had not operated the aircraft because when hooked onto the tug, the tug was operating the aircraft, not the pilot and co-pilot. The undisputed facts of defendant Fitzgerald s activities are a far cry from the facts in Hughes. The pilot and co-pilot were never seated in the cockpit together; the passengers were not boarded; the aircraft was not connected to any device to allow movement; the wheel chalks were not even removed; the aircraft door was not closed; the jet way was not removed; the pre-flight preparation had barely begun; clearance to move the aircraft was not even sought, obtained, and would not have been given in any event; the aircraft was never moved; the pilot/captain was not involved in pre-flight activities and had no intent to do so because the aircraft was going nowhere with the defendant. Hughes, in short, offers no support for the proposition that defendant was 5 operating the aircraft on August 25. Nor does any reasonable interpretation of the term operate. Dated: December 2, 2016 Respectfully Submitted, WILLEY & CHAMBERLAIN LLP Attorneys for Defendant s/ Larry C. Willey Larry C. Willey (P28870) 300 Ottawa Avenue, Suite 810 Grand Rapids, Michigan (616) Hughes has not been cited by other cases except for general propositions not relevant here. The preemption issue raised in Hughes was considered earlier in Hughes v. Attorney General of Florida, 377 F.3d 1258 (11th Cir. 2004). 9