*1 conspiracy both de alleging tous in to commit var AVIATION ADMINISTRA- FEDERAL the United States
fraud and United States TION allegation offenses. “The ious substantive America, Appellees, conspiracy to commit single in a count duplicitous, for ‘The is not crimes several v. crime, one, and that conspiracy is and International Marshall LANDY M. ” objects.’ Braverman however diverse Inc., Leasing, Appellants. Aircraft 49, 54, States, 317 63 S.Ct. U.S. v. United 448, 455, 82-6162. Dockets Nos. (1942) (quoting Froh 99, 102, L.Ed. States, 204, 210, 39 249 U.S. Appeals, werk v. United United States Court (1919)). L.Ed. 561 This Circuit. Second to a specifically applied been has principle 16, 1982. Dec. Argued conspiracy to defraud charging single count 11, 1983. April Decided and to commit substan the United States Manton, United States tive offenses. denied, Cir.1939), (2d cert.
F.2d
(1940).
allegations any possibility eliminate counts
substantive expressed United States
of the concerns Rosenblatt, (2d Cir. count appellants rely, that a
1977), on which conspiracy to defraud
alleging only unspecified way in some risks allegation without either an
conviction essential of the fraud. nature
proof
VI. appellants’ other
We have considered they satisfied that are with-
claims and are do not warrant discussion.
out merit and of the reasons set forth in this
For all for the further reasons set
opinion and comprehensive opinion in the
forth
Pratt, denying post-trial defendants’
motions, appellants we conclude that both legal tried and that there is no fairly judg- in their convictions. The
infirmity from are affirmed. appealed
ments
OAKES,
Judge:
Circuit
Air-
and International
Marshall
M.
(IAL)
from a
Leasing,
appeal
Inc.
craft
$378,-
civil
judgment
imposing
$189,000 against
Landy and
against
Krause,
Granito; Jr., Speiser &
Frank H.
safety regulations pro-
IAL for violations
Halloran, Jr.,
P.C.,
(John
York
J.
City
New
subchapter
authority
under the
mulgated
Krause, P.C.,
City,
New York
Speiser &
Act,
Aviation
49 U.S.C.
VI of the Federal
Landy.
brief),
appellant
M. Marshall
(1976
1980).
IV
Supp.
&
§§
City, for
Cerny,
Howard F.
New York
District Court for
South-
Inc.
Leasing,
Intern. Aircraft
appellant
Carter,
York,
New
Robert L.
ern District of
judgment
after a
Judge, entered the
Obús,
Atty.,
E.
Asst. U.S.
S.D.
Steven
pre-
special
finding by
verdicts
returned
Martin, Jr.,
N.Y.,
(John
City
New York
S.
*4
and
Landy
of the evidence that
ponderance
S.D.N.Y.,
Dolinger,
Michael H.
Atty.,
U.S.
Boeing
a
707 for com-
operated
IAL both
Warren,
Attys.,
Thomas D.
Asst. U.S.
S.D.
forty-three
pensation or hire on
N.Y.,
counsel),
appel-
City,
New York
of
for
2,1977
2,1977.1
August
May
to
lees.
twenty-seven
violated
Federal
flight
Each
(FARs);
flight
one
OAKES,
Regulations
Aviation
VAN GRAAFEILAND
Before
FARs.2 The factual
twenty-eight
MESKILL,
Judges.
violated
and
Circuit
readily
cockpit, FAR 121.-
in the
This
list
315(c);
usable
1. This trial was the second
this case.
judg-
approved
(12) operation
an
and remanded the first
without
court reversed
121.343;
jury interrogato-
recorder,
(13) operation
in the
ment because of defects
ries,
FAR
jury
particularly
recorder,
cockpit
working
the failure to have
voice
FAR
a
without
during
121.359;
prox-
violations occurred
(14) operation
ground
determine which
without a
flight.
which
slope
alerting
imity warning-glide
deviation
(2d Cir.1980).
121.360; (15)
prepare
system,
failure to
FAR
keep
manual for the use and
and
guidance
a
current
By special interrogatories,
found
ground
flight,
operations, and man-
of
Regula-
following violations of Federal Aviation
121.133, .135; (16)
agement personnel, FARs
(FARs),
(1) engaging
tions
14 C.F.R. Part 121:
required, FAR
to furnish manuals as
failure
compensation
carriage
property
of
or
in the
for
121.137;
appropriate parts
(17) failure to have
commerce without a commercial
hire
air
121.139;
airplane, FAR
manual on the
of the
certificate,
121.3(f)
operator operating
FARs
airplane
(18)
in accord-
failure to maintain the
carriage
121.45(a); (2) engaging
of
and
in the
portion of the man-
ance with the maintenance
ual,
property
compensation
com-
for
or hire
air
121.369(b); (19)
failure to include
FAR
specifi-
operations
merce without FAA-issued
organi-
description
of the maintenance
chart
cations,
121.3(f), 121.43,
121.45(b);
FARs
and
manual,
operator’s
121.-
an
FAR
zation in
369(a);
(3)
employees
portions of
failure to inform
of
(20)
maintain a
to establish and
failure
operations specifications applicable to their
analysis
system
continuing
and surveillance
responsibilities,
121.75(a); (4)
and
FAR
duties
performance
and effectiveness of
of the
inspection
tests,
proving
failure to conduct 50 hours of
programs,
FAR
and maintenance
121.163(a); (5)
FAR
failure to demonstrate
training pro-
121.373(a); (21)
failure to have
carry
ditching
ability
FAA
out
the
procedures,
aircraft
personnel performing
gram
nance,
aircraft mainte-
121.291(d);
(6)
FAR
extended
121.375;
(22)
assign
FAR
failure
operation
preserver
overwater
without a life
specific
perform
member
functions
crew
emergency
occupant,
for each
FARs
board the aircraft
situations,
121.397(a);
(23)
FAR
121.303(a), (d)
121.339(a)(1) (one flight
and
emergency functions as-
to include the
failure
FARs);
(7) operation
found to violate these
manual,
signed
crew member in the
to each
regular
inspection
airplane’s
of
121.309(b)(1);
without
121.397(b); (24)
failure to establish
FAR
(8)
emergency equipment,
FAR
training program
members and
for all crew
operation
clearly
extended
without
overwater
.403;
121.401(a),
airplane dispatchers, FARs
equipment,
emergency
especially identified
approval
(25)
of the
raft,
oper-
failure to obtain
life
marked to indicate its method of
121.405; (26)
program,
training
use of
ation,
121.339(a)(2);
FAR
121.309(b)(3)
FARs
and
airplane,
had not
pilots
who
(9)
equipment,
in command of
take off
first-aid
FAR
without
year,
preceding
passed
within the
121.309(b), (d); (10)
having
a line check
take off without
121.440; (27)
pilot flight crew
use of
provided
approved
FAR
crews with an
cock-
aircraft
completed proficiency
(11)
pit
procedure,
121.315(a);
not
members who had
check list
FAR
121.441;
year,
preceding
operation
approved cockpit
FAR
checks within the
without an
check-
plane’s
civil
legal
oper-
safety
gener-
and
defense
that the
aeronautics. See
ally 14 C.F.R. Parts 1-199.
make Landy
subject
ations did not
and.IAL
in 14
regulations,
these
found
C.F.R.
to this
particular
Of
relevance
case are
Part
and IAL were
two
portions
regulations,
those
Part 91
operators
Boeing
commercial
but
“general
and Part 121. Part 91 sets forth
oper-
rather
it to
subleased
customers
and
rules” for “the
operating
opera-
appeal,
challenge
they
ated it. On
the suf-
tion
... within the United
of aircraft
ficiency
point.
of the evidence on
Ad-
and,
exceptions,
States”
limited
procedural
ditionally,
they challenge
operation
of “civil
regis-
rulings,
evidentiary
charge
court’s
try
of the
outside
United States.”
jury,
scope
91.1(a)-(b).
and the
C.F.R.
In addition to
sanctions.3
these
general applicability,
rules of
FAA has
findings
We
the jury’s
hold that
of fact
a far
extensive
promulgated
more
clearly
neither
erroneous nor affected
stringent
of rules for certification
set
charge;
an erroneous
the trial
commonly
aircraft for what is
judge
erred as
neither
a matter of law nor
considered commercial aviation.4 Part 121
abused
rulings;
his discretion in the
appliés
types
(i)
aviation:
to two
air
correct,
the calculation of fines was
carriers,
121.1(a)(l)-(4),
(ii)
14 C.F.R.
and we
judgment.
therefore affirm the
operators
they engage
commercial
when
“in
I. The Regulatory Scheme
persons
carriage
property
in air
The Federal Aviation Administration
commerce for
or hire.” 14
*5
(FAA)
authority
promote
has
aircraft
121.1(a)(5).
concerns
C.F.R.
This case
§
safety by regulation
categories.
of civil aircraft
in
second of these two
air
1421(a). Any
commerce. 49 U.S.C.
oper-
§
provides
“[a]ny person
The statute
that
affects,
ation
“directly
that
or which may
operation
or
causes
authorizes the
of
in, interstate,
endanger safety
overseas, or
aircraft,
or
whether with
without
foreign air commerce” is
included
right
(in
capacity
of
control
of
legal
air
definition of
commerce.
U.S.C. owner, lessee,
aircraft,
otherwise)
or
of the
1301(4).
general
§
Pursuant
statutory
shall
to be
in the
engaged
opera-
be deemed
authority,
of
Administrator
the FAA
meaning
tion of
within the
of the
aircraft”
has
rules, regulations
issued extensive
and
1301(31)
Federal Aviation Act. 49 U.S.C. §
1980).
minimum
designed
standards
A
(Supp.
operator”
enhance
IV
“commercial
(28)
flight
comply
pended
failure to
with
route and
on resolution of a threshold economic
airport familiarity
pilots,
question:
opera-
for
certification
FARs
“Where it is doubtful
that an
121.443,
(cid:127)
hire’,
.445.
‘compensation
ap-
tion is for
test
plied
merely
carriage
air is
is whether
purpose
3.
imposing
penalties,
For the
of
civil
is,
person’s
incidental
other business or
complete
court chose to count each
itself,
major enterprise
profit.”
for
a
(twenty-eight
flights),
leg
rather than each
(defining “commercial-operator”).
C.F.R. § 1.1
itinerary
(forty-
continuous
as a
developed
opinion,
For reasons
our
we find
flights),
three
as the
had done.
opera-
and IAL were commercial
judgment
imposed
The final
half the statuto-
tors.
(cid:127)
ry
penalty
Landy’s
civil
maximum
for
of
Aviation Administration
has
Federal
quarter
statutory
violations and one
maxi-
operat-
further
and
since enacted
certification
penalty
violations,
mum civil
for each of IAL’s
ing regulations
airplanes
for
with a maximum
Government,
awarded costs to the
and en-
6,000
payload
joined
capacity
pounds
or more or
operating
large
the defendants
a
seating capacity
compensation
of 20
Part
or more.
for
C.F.R.
or hire without com-
Thus,
plying
(1982).
with
the issue
who maintains
Federal
Administration
Aviation
regulations.
operational
airplane
reported
during
opinion
control
Carter’s
is
of the
(CCH) 18,165
9,
sublease,
(S.D.N.Y.
question
juries
Av.Cas.
Feb.
involved
1982).
judges
appeals,
two
circuit
in two
trials and
is
significance
of diminished
in the aviation world
4. At
case,
the time of the
in this
events
today.
applicability
stringent
of the more
commercial
safety regulations,
aviation
FARs Part
de-
tions,
certification).
of such
Collection
meaning.5 Opera-
ordinary
is defined
against
civil suit
ordinarily by
must obtain
or hire
compensation
tors for
1473(b)(1),
ei
violator,
and
49 U.S.C.
operat-
§
an
Together with
approval.6
FAA
“of
by jury
demand a trial
party may
ther
certificate,
121.3(f), they
14 C.F.R.
ing
§
previously
fact” that has not
any issue of
operations specifications,
must also obtain
hearing.
in an administrative
been determined
type
matters as the
such
which determine
authorized,
operation,
areas
operations
Id.
overhauls,
inspections and
time limits for
the Aircraft
Operation
II.
limitations, and
authorizations and
airport
from a
Boeing
Ger-
Landy bought
requirements
for
weight and balance
con-
1976. The
man airline in
121.45(b). To obtain
aircraft.
14 C.F.R. §
and IAL exe-
carry cargo. Landy
verted to
specifications,
and operations
a certificate
agreement
April
lease
year
cuted a one
must demonstrate to the
operators
August
2 and
May
1977. Between
with their
ability
comply
only
their
of subleases.
IAL entered into series
terms,
regulations
but also with the other
subleases, operating out of
Most of these
applicable
operations
Part 121
York,
transporta-
involved
Newburgh, New
go
regulations
or hire. These
foreign airports.
tion of livestock to
On
qualifications
matters as
to such varied
occasion,
an Amer-
was ferried
flight person-
training of maintenance
and these
foreign airport,
ican crew to a
nel,
in the aircraft and
equipment required
trips
foreign
flew seven
between
air-
crews
of detailed
ground,
preparation
on the
contract stated
ports.
typical
A
sublease
maintenance
governing inspection,
manuals
would have
shipper-lessee
of the aircraft.
possession, use and con-
full and exclusive
Act,
Aviation
noncom
Under the Federal
Aircraft, shall have the sole
trol of the
in revocation of certifi
pliance may result
use and con-
responsibility
operation,
fines,
cation,
civil
id.
direction,
trol,
pilot assignment
penalties,
or criminal
id. §
utilization of
aspects
and for all other
any
applica
comply
Failure to
obtain from a
the Aircraft. Lessee shall
to civil
regulations subjects
company
ble
or em-
reputable aircraft service
*6
such
exceed
for each
certified crew
directly properly
“not to
ploy
$1000
violation;”
continuing
be under the
day
viola
members ...
shall
[who]
and con-
complete supervision,
offense.
49 U.S.C.
direction
tions is a
1430(a)(5)
way
under
1471(a)(1).
any
trol of Lessee and not
See
U.S.C. §
§
or control of or
supervision,
in air
direction
(prohibiting operation of aircraft
to Lessor.
rules, regula
way responsible
in any
in violation of FAA
commerce
.
“
who,
authority
1966).
legality
operator’
is further
means a
‘Commercial
Landy
hire,
engages
car-
for
more the law of this case.
persons
riage
aircraft
in air commerce of
F.2d at 147-48.
foreign
property,
air carrier or
other than as an
authority
under the
of Part 375 of
air carrier or
Deregulation
Airline
Act of
7. Before the
this Title....”
14 C.F.R.
1.1.
§
party
Pub.L. No.
92 Stat.
regard-
any
trial of
issue of fact
demand a
may
appellants
that the FAA
6. The
contend
agency hear-
less of
there had been an
whether
operating
require
certificates
that are
issue or
regulatory
ing
on the issue of
violations
operat
airport
... air carrier” or
“other than
1473(b)
amended,
penalties.
As
49 U.S.C.
certificates,
121.3(f)
ing
thus
that FAR
only
1980),
(Supp.
de novo
IV
allows trial
authority
legislative
FAR 121.4 con
lacks
previously
in the adminis-
facts not
determined
congressional
stat
flicts
intent. But the
H.R.Conf.Rep.
hearing.
See
No.
trative
enough
empower
plainly
ute is
broad
117, reprinted
in Cong.,
2d
95th
Sess.
operators.
regulate
FAA to
commercial
3737, 3773,
Cong.
3817-
Ad.News
U.S.Code
&
supra.
1421(a)(6);
see discussion
amendment,
applicable
even if it were
18. The
See,
history
of such enforcement.
There
events,
change the
would not
to these 1977
States,
Leasing Corp.
e.g.,
M
v. United
B &
case,
history
procedural
because there
of this
curiam);
(5th Cir.1964) (per
F.2d 592
hearing.
was no administrative
Bradley,
F.Supp.
(S.D.Tex.
States v.
Thus,
times, Landy
at all
and IAL operated
Ltd.,
Warton’s company,
sup-
Air-Trans
plane
form as if the
leased
plied all the crews for all the subleased
cargo
shipper
operation,
controlled its
flights.
appeared
Air-Trans
as transferee
bringing
under the
Op-
General
on the bill of sale
Landy purchased
when
Rules,
erating
14 C.F.R. Part 91. The jury,
the aircraft from Lufthansa and authorized
however,
that Landy
found
and IAL re-
the work order for inspection of the aircraft
tained control of the flights, which were
Moreover,
in Florida.
Air-Trans had no
operated
compensation,
and should
office of its own. Warton conducted Air-
complied
therefore have
with the stricter
office,
Trans’ business from Landy’s
includ-
certification,
inspection and maintenance
ing the
payment
crew members for the
requirements of 14 C.F.R. Part 121.
and, frequently, supervision
A. Landy. The link between Landy crews when they conducted
overseas
operational
plane
control of the
is Henry
flights. Landy’s secretary signed all the
Warton,
Ltd.,
president of Air-Trans
an en-
paying
Air-Trans checks
crew members for
tity
jury apparently
concluded was a
their services.
shell company
Landy.8
Warton told
B.
The link
op-
IAL.
between IAL and
in the summer of 1976 that Lufthan-
Landy
erational
plane
control of the
is J.D. Smith
sa was
in selling
interested
the aircraft.
Inter-Ocean,
(J.D. Smith),
Inc.
the company
brought
Warton
representa-
Lufthansa
serving as IAL’s
agent.9
exclusive sales
Landy
negotiate
sale,
tive to
went to
IAL
relied
the terms of the sublease
Germany
complete
the paperwork, ac-
agreements
prove
that IAL was not re-
companied
back to Miami where
sponsible for operation of the aircraft. The
he supervised
refitting
its
from passenger
evidence, however, indicated that IAL and
to cargo configuration, and supervised the
J.D.
performed
Smith
virtually all of the
preparation of an inspection program and
necessary
aircraft,
functions
to operate the
application for airworthiness certification
and the shippers were almost entirely ex-
by the FAA. Warton then
party
found a
cluded from any responsibility for the air-
willing
plane.
to lease the
negotiated
He
craft or
operation.
A shipper would ask
the IAL lease under
which the
oper-
the air export manager of J.D. Smith to
ated during the
period
three-month
at issue
arrange
shipment
cargo.
The mana-
here, and delivered the plane
IAL
ger would then
agreement
send a sublease
Airport
Stewart
in New York State. War-
prepared by
time,
IAL. At the same
ton notified IAL in August 1977
manager
obtained from IAL the cost
lease,
was terminating the
repossessed the
charged by IAL
flight,
for the
and plane for later,
several weeks
crew,
Air-Trans the cost of the
and would
then supervised
of various of
inform the shipper of the total cost.
Landy’s
aircraft both directly for Landy
*7
shipper
responsible only
and
was
for delivering
under lease to
parties.
Indeed,
other
cargo
the
airport
to the
when IAL specified
Warton was to receive twenty-five
percent of
that the
Landy’s profits
plane
ready.
would be
IAL
provid-
maintenance,
the aircraft for his
ed
services as broker
fuel and all auxiliary
serv-
the original sale,
jury
the
could have
ices for the plane,
directly
con-
either
or through
cluded
Landy
that
and
joint
Warton
airport
personnel, who billed IAL or J.D.
venturers.
Smith, not the shipper. J.D.
supplied
Smith
Ltd.,
corporation
8.
trial,
Air-Trans
a Bahamian
supra,
listed
the first
see note 1
the court en-
action,
as a
apparently
defendant
in the
judgment
against
tered
J.D. Smith in the
not served
complaint.
with the Government
$20,000
amount of a
civil fine.
J.D. Smith
proceeded against Landy, IAL,
The first
trial
stipulation
entered into a
of settlement with the
and
Landy,
J.D. Smith. FAA v.
631
F.Supp.
(E.D.Mo.1976);
799
the
419
refitted
storage equipment,
animal
Garrett,
1304
F.Supp.
and States
cattle-carrying flight,
for each
plane
pre
penalties by
for civil
(N.D.Ga.) (liability
lump
payment
sum
shipper’s
the
disbursed
aff’d,
evidence),
ponderance
(for
(for
crew) and to IAL
the
to Air-Trans
Cir.1969)
curiam), cert. de
(5th
(per
operation).
other costs of
the
nied,
26 L.Ed.2d
subleases not
language of the
(1970).
that
could conclude
withstanding,
jury
the
Charge. Appellants
Jury
C. The
IAL,
arrangement
handling
shipping
the
by
charge on
that
the trial court’s
also assert
through
and
J.D.
payments directly
and
erroneous, and
control was
operational
Smith,
Landy, by supplying
well as
as
Special
Ver
jury’s
tainted the
verdict.
and,
and Air-
through
aircraft
Warton
“Do
Landy
asked as to
and IAL:
dict form
crews,
Trans,
plane.
had control of the
preponderance
of the evidence
you
by
find
finding
that
support
jury’s
The facts
operated
...
the aircraft
that defendant
for
operated
both
Landy
IAL and
IAL
Landy
or hire?”
compensation
for
hire,
therefore
compensation or
that
phrase “operated
that
argue
first
Landy
complied
well as
should have
IAL as
121.3(f)
not match FAR
aircraft”
does
Reg
Federal Aviation
with Part 121 of the
may
...
specifies
which
that “[n]o
operators.10
governing
ulations
commercial
proper
or
engage
carriage
persons
in the
evaluating relationships similar to
Courts
hire in air commerce
ty
compensation
for
or
beyond
have looked
the form of
those here
without,
in violation of a commercial
agreements to the substance of
contractual
operating
appropri
certificate
operator
sanctioning those
operations,
actual aircraft
issued under
operations specifications
ate
aircraft for com
effectively operate
an
note first
that
the trial
part.”
We
FAA safety
or hire in violation of
pensation
regulation’s language
judge did use
Aircrane,
e.g.,
Inc. v. But
regulations. See
in”)
instructing
jury.
(“engage
terfield,
F.Supp.
Second,
finding
no
requires
the violation
(three judge court); United
(E.D.Pa.1974)
intent,
how the
and we fail to see
(S.D.
Bradley,
F.Supp.
the semantic
would have been misled
Tex.1966). The evidence at trial was clear
and “to
operate”
distinction between “to
support
jury’s finding
ly sufficient
engage in.”
IAL
operated
aircraft
additionally argue
compensation
for
or hire and were there
and IAL
instructions,
which we set out
subject
safety regulations.
fore
to Part 121
two
law. Aircrane
Lines, Inc.,
misstated the
margin,11
v. Ozark Air
See United States
control,
-
hinges
Appellants
argue
ship-
direction
if
of an aircraft
also
that even
tion
control,
operations.
pers
operational
oper-
responsibility
its
I now
did not have
Ltd.,
you
ator must be deemed to be Air-Trans
that where a lessor and/or
instruct
corporation
foreign oper-
agent
Bahamian
and thus a
to its subles-
to recommend
undertakes
subject
Part 129 rather than
ator
C.F.R.
identical
for each
crews which are
sees
Air-Trans,
Landy,
But
was found
operation,
pro-
Part 121.
such fact is
lease and for
operated
to have
question
the lessor
of whether
bative on
Moreover,
apply
Part 129 does not
unless
hire.
agent
operational control of the
shifted
and/or
foreign
permit
air carrier holds a
issued
to the sublessee.
Aeronautics Board under 49 U.S.C.
the Civil
an aircraft and
It is also the law
where
1372. Air-Trans Ltd. was not such an air
cargo
transportation
shipper’s
crew
carrier,
1301(3), (10), (23) (1976
see 49 U.S.C. §
parties
suppli-
but the
is furnished
different
*8
1980),
acquired
Supp. IV
and had never
&
supplier of the crews
er
and the
Moreover,
permit.
parties
briefed and
CAB
way, and the net effect of
are related in some
appeal.
argued
This
this issue on the first
responsibility
to
these acts is
leave
rejected
argument
implicitly
in its
court
and/or
of the
in the lessor
aircraft
grounds.
reversal on other limited
See
crew,
furnishing
v.
is, however, adequate authority for an in- requiring proof knowing and willful vio- struction that recommendation of crews is lation). testimony If the had been offered probative question of operational on good to show faith confusion as to applica- Every flight control. Air- employed an of Part 91 bility regulations type to this crew, jury Trans and the reasonably leasing, testimony would be infer crews plane. came with the issue, see, e.g., relevant to the sanction challenged second instruction is little Bradley, United supra, truism; more than a Landy’s counsel F.Supp. at but this was not an issue agreed that if the lessor and the crew sup- of fact jury consideration. plier keep control, operational then the les- For the same reason of relevancy, Further, see does not. the instruction is properly warning court excluded letters supported as a matter of law Shaffer v. crews, plane’s flight which defense Aviation, Inc., Eagle Golden 1 NTSB 1028 counsel would have offered to show that (Jan. 1971). Finally, IAL claims error in the violations were deemed the FAA not the court’s charge failure to on agency. serious, to be or not to involve a threat however, Agency, was not an element of safety. The issue of seriousness of the vio complaint, and was not in issue. The lations, good like the issue of faith confu properly charged operational court on con- sion, goes scope to the of the penalties sum, trol. In we have examined the con- imposed. Imposition penalties is com tention that the court’s charge erroneously court, mitted to the jury. led the key finding Landy’s (9th States v. role, Duffy, F.2d and IAL’s and find the arguments Cir.1977) (per curiam). The court did re insubstantial. ceive all Landy’s post-trial this evidence in Evidentiary Rulings. D. Appel papers question submitted on the of penal objected lants opinion exclusion of testi ties. witness, mony by one a former FAA Dis Supervisor, trict Office who would have objects IAL grounds of unfair testified industry practice as to and FAA surprise to the admission of testimony of policy concerning operational control of a Counsel, Regional FAA who was not leased aircraft under Part as reflected witness, listed as a Government but was in Advisory Circulars. The testimony was nonetheless called as a rebuttal witness. properly excluded for First, two reasons. The substance testimony of his came as no questions soliciting the former FAA em surprise, because he had testified at ployee’s understanding of the meaning and Further, first trial. supra. See note 1 even Part 91 applicability of and Part 121 FARs though government had indicated that would province invade the of the court to it witness, was not going to call this it was applicable determine the law and to instruct proper to impeach do so in rebuttal and the jury See, as to that e.g., law. United ment of president’s IAL’s testimony he Ingredient States v. Technology Corp., 698 had been assured the FAA that oper his (2d 88 at 96-97 Cir.1983) (tax evasion); ation proper. Marx Club, Inc., & Co. v. Diner’s Two (2d Cir.) evidentiary rulings other on the (contracts), cert. de nied, operational issue of control are raised on 54 L.Ed.2d 134 (1977). Second, appeal. allowed, The Government was over industry practice and hearsay objection, policy put evidence a (apparently suggesting that operated others telex sent by government aircraft for the German hauling” “meat under Part 121) through Department 91 rather than the State to the FAA. Part irrelevant to the jury’s testimony determination telex went to rebut the violations regulations, requires shipper get landing rights, which that in order to no finding of intent. Compare government he had satisfied the German (civil any violation) Germany that a to New York *9 a Id. As The telex to move for continuance. to operation. was commercial been not a time, Germany that raised here for the first grounds informed the Government the the to enter Ger- permit not note that Carter stated simply would we it had space man in the future because and air list “contains the dates that the ap- on that without operated been government alleges the that there on which proval by government. violations; the German The 43 are some listed.” So inspector by identified the FAA telex was can see was a perfectly far as we to had been sent. As a statement whom it jury aid to the in its deliberations on proper government to the federal by foreign Virginia Compare issue. First a factual government, fac- incorporated in the FAA’s 1307, Benson, v. 559 F.2d Bankshares investiga- findings resulting tual from an Cir.1977) (court gave jury (5th permissibly by to pursuant authority granted tion made necessary to written outline elements law, public telex was as a the admissible defendant), denied, 435 cert. convict U.S. Fed.R.Evid. report record and under (1978) L.Ed.2d S.Ct. (C). Grady, 803(8)(B), See United States Manufacturing Corp., 229 v. Warner Shane (2d Cir.1976). 544 F.2d (3d Cir.) (court permissibly 209-10 damages gave jury computation written III. The Flights counsel), appeal by plaintiff’s dis prepared preponderance If found jury 860, 100 missed, 351 L.Ed. operated IAL evidence that Adams, (1956); with in air commerce for (2d Cir.1967) (court hire, step identify the next was to incriminating gave jury writ impermissibly flights. Landy and IAL raise three issues which had by government agent ings here. evidence). received in been Flight Violations A. List. Appellants B. The Book. Log in opera 'of FARs occur when an aircraft error the in evidence of raise as admission tion, Further, the civil scheme penalty log book. The basis their the aircraft day Aviation Act each Federal makes foundation, objection was lack of authentic continuing violations offense. accuracy. There was completeness, and ity, put therefore in documen Government however, testimony a pilot, from deposition tary (such well as testimonial evidence as as required he was to fill out mainte plane’s log pilot’s deposition) book and that mainte log nance fact that from which the could find as routinely noted in problems nance would be specific flights had occurred. The court This, coupled log. testimony permitted alleged flights a list of these log book of John Burns of IAL that accompany jury, Landy objects be it was re on the aircraft and kept cause the list was never offered in evidence. business, regularly viewed the course trial, however, At his were dif objections within as a record supports admissibility the in successfully objected ferent. He 803(6). of Evidence ambit of Federal Rule references to or testimo clusion of exhibits ny He purporting flight. establish each Foreign Jurisdiction Over C. objected including flights unsuccessfully 3, 1977, June trans Flights. On alleged were not the Government’s Rica, Jose, cargo from San Costa ported Rules, pleadings. Under the Federal how Venezuela; 10, 11, 12, Caracas, July ever, plead when issues “not raised 15,1977, plane, subleased LANI ings express tried consent implied are Airlines, CA, flew Nicaraguan National effect, are, parties,” pleadings Nicaragua, to Cara Managua, meat 15(b). If amended. Fed.R.Civ.P. cas, We are asked to consider Venezuela. admitting and IAL felt that evidence as to jur assert properly on the whether the FAA flights prejudiced those their defense merits, flights. these appropriate foreign would have over response isdiction
634 forth regulatory set scheme trades into the of sovereignty foreign
We have
a
Quite
power.
Federal Aviation Administra
simply,
fining
above. The
the FAA is
an
promote
safety
is “to
of
entrepreneur
tion’s mandate
American
business entity,
commerce,”
in air
49
Nicaragua.
of civil
not the national airline of
If
1421(a)(6), and it
“air com
is
in fact
operational
LANICA
had
control of
operations
IAL,
merce” of commercial
is
the plane,
Landy,
rather than
and the
crew,
Part 121 of 14
“Air
regulated by
C.F.R.
Air-Trans
there would not have been
regulations.
defined
of
any
commerce” is
the Act to mean
violation
Part 121
“interstate,
or foreign
overseas
air com
IV. The Violations
any operation
navigation of
merce ... or
or
Landy and IAL’s factual defense conee'n-
affects,
directly
or which
aircraft which
trated on the
of Part
inapplicability
121
in, interstate,
may
safety
overseas
endanger
regulations to their
rather
operations,
than
commerce.”
foreign air
49 U.S.C. on controverting
proof
the Government’s
of
1301(4) (emphasis added).
safety
The
of
contend,
specific
however,
violations. They
foreign
carriage by
air commerce —“the
air
rulings
that erroneous
instructions
property
craft of ...
...
of
jury’s findings
affected
violations.
or hire
in commerce
...
a
...
between
Deposition
A.
Notice.
The Govern-
place
any place
in the United States and
evidence
in part by
ment’s
was offered
49
— n
1301(24)(c)
outside thereof”
U.S.C. §
deposition
Robinette,
testimony
pilot,
may
certainly be endangered
most
on the
employed by
nearly
Air-Trans for
half the
trial.
proved
facts
at
The
is
endangerment
flights
question. Landy contends that
First,
twofold.
other
planes
process
his
rights
infringed
due
fly from the United States to
interna
these
admission of this
testimony
defense
airports, including
tional
passen
scheduled
lacked adequate
dep-
counsel
notice that the
ger
to Caracas and
Jose.
San
osition would be taken.12
Second,
at
all
employed
times
United
crew supplied
States
Air-Trans.
The
require
Federal Rules
rea
Recognizing that
term “air
opposing
commerce”
sonable written notice to
counsel
broadly
will be
construed to effectuate a
taking
oral deposition.
before
an
see,
congressional purpose,
e.g.,
valid
30(b)(1).13
Unit
days
Fed.R.Civ.P.
Ten
before
ed
Healy,
States v.
376
trial,
U.S.
an
the Government located
Air-Trans
553, 558-559,
(1964);
S.Ct.
pilot,
L.Ed.2d 527
unavailable for trial in New
Busick,
(2d
York.
Government notified defense
Cir.1978),
do not
appellants
we
find that
Monday
taking
counsel on
Robi
any
have
compelling arguments
raised
deposition
nette’s
following Friday
against
jurisdiction
flights.
over these
Tampa,
Florida.
those four
During
days
We
Hansen
distinguish
v. Arabian Ameri
defense
counsel neither
contracted the
Co.,
can
F.Supp.
Oil
government’s attorney, see S.D.N.Y. Civil
(E.D.N.Y.1951),
grounds,
aff’d on other
3(f),
nor sought expedited
Rule
relief from
(2d
denied,
Cir.),
court,
30(b)(3),
cert.
73 the
see
Fed.R.Civ.P.
but
(1952),
training program governed engages train- who in an approval of the nonexistent tain FAA reflection, part appropriate how- further without the ing program. On [Part 121] ever, operations specifications.”16 the violations are dis- certificate and find that we tinct. challenging As well as manner counted, are of whether in which the violations charges
The test is, one important part, challenge and IAL court’s consideration multiplicious by the Congress jury. intent. should indicate of matters not determined legislative *12 as contemplated separate explicit, it viola The statute makes it we have clearly that above, tions, a determination that should reflect a because that noted Carter ad possible range are involved makes it to broad of factors. violations 1 in opinion fine C. dressed these factors his and we cumulatively. generally See concluding ground 2d no that he Wright, Federal Practice Procedure find his at 476-78. also United v. abused discretion. See § Reed, (2d Cir.1981). F.2d 904 The 639 requires Federal Act carri- The Aviation clearly scheme issue here regulatory perform high- ers “to services with ... person harms. A who com states discrete in degree safety public est interest.” plies require the manual with some of 1421(b). 49 out- regulations U.S.C. § ments, fails example, but to furnish safety. line minimum standards of 49 FAA, subject is to a copy to the fine In re Crash Disas- 1421(a)(6); Air § that one discrete violation. It would be Kennedy ter at John F. International Air- totally to reward the anomalous (2d on June F.2d port ignores requirements manual con noted, Cir.1980). As the district court he, too, subject cluding that is to but a comply regulations to relat- [f]ailure single when he simultaneously fine violates ing personnel, equipment, to training regulations. juries several Other have operational procedures poses facilities and See, multiple found violations. e.g., public a serious hazard. The FAA .... Aircraft, States v. Lockheed L-188 depend largely voluntary must on adher- (9th Cir.1979) ($165,600 in fines for ence to it .... promulgates the rules regula of Part separate violations there an While is no evidence of actual tions). danger any safety to on in public
Landy and carry IAL this unsuc bypassed regu- which defendant argument lations, logical cessful to its extreme happenstance fortunate is when state they totally that because the did irrelevant. violations certificate, not Part 121 have a it not on broadly trenched all the substantive operate in violation of Part 121 regulations, requirements operations for commercial say which bind they only designed public safety certificate holders. and were to insure plain A reading regulations contempt regulatory refutes in cavalier for the argument. 121.4 specifically system FAR itself. there can be no issue Since inadvertence, makes Part 121 apply only rules not to at the here mistake individual, firm, Landy argument “any copartnership, corpora- raises the reverse in chal- tion, association, lenging charge specif- company, joint the court’s to the stock associa- violations, reject tion, argument. trustee, body any ic politic; we also and includes Thus, operation receiver, representa- claims assignee, he or other similar ground system proximity warning 1301(32) (Supp. without a tive 49 U.S.C. IV thereof.” (FAR 121.360), (FAR 1980). data recorder Further “airmen” defined stat- 121.343), (FAR 121.339), ute, a life raft aid 1301(7), or a first id. and the FAA would have (FAR 121.309) subject only kit air- would parts regula- term if used that narrower men, fines, owner-operator, not to only applicable were those indi- tions to be to regulations go “per- these to the conduct See, Duncan, e.g., viduals. son,” not a holder.” “certificate The former F.Supp. (N.D.Tex.1968) (pilot shall use term, broader, narrower, however is than mask, oxygen 121.333(c)(31)). FAR “person” latter. The Act defines to mean least, completely sanc- Government failed to establish very require these violations crew, guard against appellants’ experienced as a similar violations in tions travel, in by others the future. and international were un- device as a identify question to in able 18,165, (CCH) 16 Av.Cas. operated. raft or understand how it life 9, 1982). 18,166 (S.D.N.Y.Feb. Moreover, prejudi- court erred district argu- have failed in their IAL permitted when it the FAA mainte- ciously appeal, judgment and the ments testify he “felt” that inspector nance is hereby court affirmed. district contrary in instructions German counsel regulations prohibited but defense GRAAFEILAND, Judge, VAN Circuit cross- eliciting contrary answer on from concurring dissenting part: part and examination. Because air ranks somewhere safety found, the district court Although, order as pecking between motherhood danger concur was “no of an actual flag, easy American it would be there evidence such as the fully majority opinion. explaining public safety” In violations so, inability good starting point language on the crew’s first my do use of German *13 excerpt raft, district following is the kit and court’s aid life district opinion: happen- court’s “this conclusion that fortunate entirely totally is irrelevant” is not stance there no evidence an actual While is of flights, twenty-eight in true. Seven of danger public safety to on any totalling $94,500 has been liability which bypassed regu- which defendant the FAA lations, imposed, entirely is were conducted outside happenstance that fortunate flights totally irrelevant. the United Six these States. Managua, Nicaragua were between and Ca- logic, the district pursuance In racas, Venezuela, while was plane $21,000 fined in- appellants court because that Nicaragua, leased to Lineas Aereas de on aid kit appellants’ structions the first in airline. The seventh was country’s national in cargo plane printed German-built were Jose, San Costa Rica and Caracas. between 121.309(a) (b) of Vol. Section German. plead- in its allege The Government did pro- Regulations 14 of the Code of Federal on ings regulations that FAA were violated may operate that no an air- vides This, suggest, I flights. those was it equipped unless is with one or more court, perforce district Although aid 121- first kits. section liability jurisdiction impose without to 309(b)(3) requires that kit be only such a existing seven during conditions to “clearly clearly identified and marked found, which, flights, as the district court operation”, its method of the dis- indicate public safety. no to posed danger that, charged trict court for such instruc- clear, “language to be must be they tions in safe- empowered promote is “to Assuming the crew.” understandable to civil aircraft in air com- ty of deciding that under- “language without stan- by promulgating appropriate merce” to to necessary standable the crew” 1421. regulations. dards U.S.C. § identify the first aid kit on appellants’ commerce”, “Air as in 49 defined and to opera- indicate its “method of 1301(4) (20) only flights refers that tion”, is that proof there no one or more in originate or terminate the United States appellants’ members of crew did not under- “may endanger or which or its territories Indeed, stand German. the fact that some majority’s that do. safety” flights logbook in the plane’s during entries out of the assertion that period at issue were made in would German most be en- “may certainly indicate such did exist. understanding trial”, at is dangered proved the facts is iota of $21,000be- unwarranted. There not one Appellants were fined another in the the district placards proof on the crew’s raft were record rebut cause life danger public no actual printed again, finding German. Once court’s proof less sufficient much make safety, CARROLL, finding clearly Plaintiff-Appellant, erroneous. Herbert opinion, in our
As out first pointed the Government has “thrown at OF HEALTH AND SECRETARY appellants an attempt book” SERVICES, HUMAN largest possible fine. This secure the is Defendant-Appellee. policy: FAA’s admitted 715, Docket No. 81-6253. feel we there is a ... serious [W]hen Appeals, Court or serious numbers violations violation Second Circuit. significant effect, deterrent requires March Argued forced 1983. go we been out and scrape have possible of the up every Regula- violation April 11, Decided appropriate in order to tions that com- large penalties. pute these Onstad,
Testimony of Clark Chief Coun-
sel, FAA before Subcommittee Avia-
tion Committee on Public Works and Representatives, House
Transportation, 1, 1980,
96th 2d Cong., July Sess. Record of H.R. 7488 at 38.
Hearing on judge, district
Even the whose sympa- *14 quite obviously
thies with appel-
lants, not abide the Government’s at- two out
tempt to make of each car-
riage goods the United States to
Europe had to refuel at
Gander, Newfoundland.
I agree my colleagues that appel-
lants the law violated and must be held to
account. I would a judgment affirm
against appellant Landy in the amount of
$250,000 against appellant Internation-
al Leasing, Aircraft Inc. in the amount of
$125,000. To extent that the judgments
appealed amounts, from exceed those I re-
spectfully dissent.