*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). 84 L.Ed. 1012 60 S.Ct. conspiracy-to-defraud specificity verdicts on the jury’s and the

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. 635 F.2d at 1979, September, Government under which 145. judgment impos- the court entered an amended ing enjoining civil and J.D. Smith acquired 9. agency J.D. Smith an exclusive sales from future violations. exchange lending $10,000 help for IAL pay Landy’s plane. for Following the lease of

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. 635 F.2d at 147-48. complete over the air- control crews exercise craft, operate the air- the lessee does not then already explained I the statute and the have craft. regulations you you opera- and told that the 632 Butterfield, supra, F.Supp. 611-12, with 49 (criminal penalties, U.S.C.

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), 97 L.Ed. 645 where the rather mailed motion returnable eleven private within a solely days seeking vacating later an order foreign country was clear, however, held not It within notice. it is not ambit of the FAA rules. specifically filing We of such a that stays motion reject the contention jurisdiction in- deposition, but rather a order. court Pioche urges taking dep- may also deposition that the 13. A be witness’s used at trial pretrial scheduling osition any purpose against any party violated the order. “who was order, only however, deposi- represented taking present such closed 20, 1978, trial, notice,” tions on deposition October first i.e. for the or who had reasonable Fed. supra. see note 1 32(a)(1), Carter issued had not R.Civ.P. if the witness is over 100 scheduling order for the second trial. from the miles courthouse. Fed.R.Civ.P. 32(a)(3)(B). tion; Dolman, Consolidated, culpability, history prior of- Mines Inc. v. *11 denied, fenses, effect on the 257, (9th Cir.1964), ability pay, 269 cert. F.2d 1082, of the 956, ability 13 L.Ed.2d 972 to continue to do business 380 U.S. 85 S.Ct. fined; justice “other matters as judicial take notice (1965). may The court may require.” Secretary New York to Tam Id. The of Trans- frequent flights civil portation may compromise any penal- availability procedural as well as pa, 1471(a)(2), where the remedies, 49 but concluding deposition ty, U.S.C. § parties agree payment v. not Compare notice was reasonable. Mims do case, the penalty, present agency Insurance as in the Central Manufacturers’ Mutual Co., 56, in federal (5th Cir.1949) (notice may bring proceeding 178 F.2d 59 a collection 1473(b)(1). 49 taking depositions sixteen in ten cities on district court. U.S.C. § date, days the same served ten before trial authority and the district court’s role This notice”). not “reasonable trial court The be, nor it seriously challenged, is not permitting its discretion in did abuse where, here, as the facts especially constitu- deposition testimony. See, ting by jury. violations were found 242, Ward, 448 e.g., United States v. U.S. B. Manual. Lan Inspection The 248-51, 2636, 2641-42, 100 65 L.Ed.2d S.Ct. dy objected grounds of irrelevance and (1980); Roofing Occupa- 742 Atlas v. Co. prejudice inspection to the admission of an Health Review Safety tional Commis- manual for the used IAL in the sion, 442, 450-51, 1261, 430 97 U.S. S.Ct. operations. course of The manual 1266-67, (1977); Helvering 51 L.Ed.2d 464 (which appropriate was in fact for a Con Mitchell, 391, 303 U.S. 58 S.Ct. 707) Boeing vair 880 rather than for 917; 630, 634-35, 82 L.Ed. United relevant on the issue whether the defend Co., 414, (2d 421-22 J.B. Williams F.2d .369; ants had violated FARs 121.367 and Davis, Cir.1974). I generally See K. Admin- an improper may manual not be used to (2d 1978). istrative Law Treatise 3:11 ed. inspect or maintain the aircraft. Because does, however, attack the sanctions relevant, the manual was it was properly “grossly disproportionate” as and “unrea- within the court’s discretion to evaluate sonably harsh” under the circumstances. probative outweighed any whether its value Landy’s challenge to the man- We address 403; prejudicial Ber effect. Fed.R.Evid. counted.15 ner in which the violations were 833, Enterprises, man Inc. v. Local ILA, 930, Marine Division argument on gravamen Landy’s (2d Cir.), denied, cert. “double appeal is that the district court (1981). S.Ct. 70 L.Ed.2d 381 glance, At first some counted” violations. violations, appear do to be supra, see note Penalty V. The manual, duplicative. prepare Failure to necessarily Avia- causes violation of penalty example, scheme Federal copy to furnish a to the explicitly subjects “any person” requirement tion Act organiza- who violates Act or a maintenance subchapter VI of the or to have crew functions in any regulation emergency issued thereunder to a civil tional chart or $1,000 manual, manual required fine not to exceed for each violation. or to have the crew, 1471(a)(1). Each for use or to day of a con- on the tinuing separate procedure certify violation manual a is offense.14 Id. include nature, pilot familiarity airport. Penalties should reflect the circum- with a route or stances, extent, gravity dispatcher establish a crew and of the viola- Failure to Estelle, per flight Supreme rulings in Carter’s calculation on a Court’s Rummel v. basis, per day supra, rather than see note 3 63 L.Ed.2d 382 445 U.S. 100 S.Ct. Davis, (1980), not error occurred on a 445 U.S. and Hutto v. day. (1980) (vacating) 63 L.Ed.2d 782 Davis, Cir.1979) (4th (en Davis v. put Landy’s Eighth 15. We aside Amendment banc). claim, finding light it frivolous any person to ob- certificated but “also to persons, subsumes failure

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.