Aviation Criminal Law

Aviation Criminal Law

The most dangerous criminal may be the man gifted with reason, but with no morals.

Martin Luther King, Jr., 1929–68


After reading this chapter, you should:

1. understand the importance of actus reus and mens rea in criminal law;

2. understand the recent history of criminal law in regards to aviation accidents;

3. have a working knowledge of federal criminal law statutes as they relate to aviation;

4. understand how state criminal law may apply to aviation accidents.


We first discussed criminal law in Chapter 3. In this chapter we will review criminal law as applied to aviation. A crime is the violation of laws or regulations for which some legitimate governing authority can prescribe a conviction. Crimes require a guilty act, or actus reus, in combination with a requisite mental state or guilty mind, known as mens rea.1 When the defined act and mental state are proven beyond a reasonable doubt, criminal liability results. For instance, if a person were charged with negligent homicide, most domestic jurisdictions would define the crime as killing a human being through gross negligence. Gross negligence means conduct that grossly deviated from ordinary care. The act is the killing of a human being and the mental state is the gross negligence. So, negligent homicide is the killing of a human due to gross negligence. As we will see in this chapter, a form of negligent homicide has been charged in aviation accident cases in foreign jurisdictions.

The practice of accidents being charged as crimes has sparked an ongoing debate in the aviation arena. Many individuals want somebody to hold accountable after a disaster. Some people want to feel that flying is safe and that any accident that occurs is the result of someone’s negligence, not problems with the flying industry as a whole. However, even though a human error is almost always involved (especially pilot error) in aviation accidents, multiple factors are often involved. If pilots can be criminally charged for their flight activities, they will undoubtedly limit what they tell investigators, perhaps invoking their Fifth Amendment rights, out of fear that their statements will be used against them in a criminal prosecution. Such a restraint on free-flowing information has a direct and negative effect on future aviation safety improvements.


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

Although criminal prosecutions relating to individuals and companies involved in aviation accidents started outside the US, they have also occurred domestically. In 1999, oxygen generators exploded in a ValuJet DC-9’s cargo hold, killing everyone on board. SabreTech Inc. and three of its employees were charged with murder, manslaughter, and the unlawful transfer of hazardous materials. The NTSB determined there were three major and four contributory factors leading to the crash. The NTSB allowed the FBI to participate in the investigation. Eventually, the three employees were acquitted and most of the charges against SabreTech were dismissed or overturned on appeal. This case marked the first criminal prosecution in the US subsequent to an aviation accident.

July 14, 1999

MIAMI: Three years after ValuJet Flight 592 plunged into the Everglades, killing all 110 people on board, an airline maintenance company has been charged with murder and manslaughter for loading into the plane’s cargo hold the flammable oxygen canisters blamed for the crash.

In a state indictment Tuesday, SabreTech Inc. was charged with 110 counts of third-degree murder, 110 counts of manslaughter and one count of illegal transportation of hazardous waste. Three company employees were also charged with various crimes in a separate federal indictment.

It is believed to be the first time in US aviation history that criminal charges have been filed against maintenance workers after an accidental plane crash. And while not unprecedented, murder indictments against a company are rare.

“This crash was completely preventable,” said Miami-Dade State Atty. Katherine Fernandez Rundle at a press conference announcing the indictments. “It was not an accident like many other crashes are. It was a crime … it was a homicide.”

“This corporation is not going to be allowed to escape unpunished when it committed acts which resulted in so many deaths.”

Kenneth P. Quinn, a lawyer who represents SabreTech, said in a statement: “This was an accident, not a crime.”

The DC-9 took off from Miami International Airport on May 11, 1996, and 11 minutes later spiraled into the marsh after the pilot reported that black smoke had begun to fill the cabin and cockpit.

An NTSB investigation found that the crash was caused by a fire that broke out in the forward cargo compartment among 144 oxygen canisters that were improperly secured, labeled, and packaged. The outdated oxygen generators, some of which were half-full of highly volatile chemicals, had been removed from two other ValuJet planes and were to be returned to the airline’s home base in Atlanta.

The generators, about the size of a beer can, are loaded with chemicals that, when burned, produce oxygen. In many aircraft, they deploy as a source of passenger oxygen when the cabin pressure drops. As a part of the process, they can produce temperatures up to 500 degrees Fahrenheit.

The NTSB said it was likely that boxes holding the canisters were somehow upset during taxi or takeoff, and at least one ignited, setting off others.

The NTSB concluded that SabreTech, ValuJet and the Federal Aviation Administration shared responsibility for the crash. ValuJet was a start-up airline that the FAA had failed to properly regulate, the NTSB said.

But only SabreTech, which was effectively put out of business by the crash, and three employees – Daniel Gonzalez, Eugene Florence, and Mauro Valenzuela – were charged in the indictments.

“They put corporate profits ahead of public safety,” said Guy A. Lewis, acting US attorney for the southern district of Florida.

The state murder and manslaughter charges against SabreTech do not require proof of premeditation or intent. If convicted, the company could face fines that might go to the victims’ families.

The 24-count federal indictment charged SabreTech and the three employees with various crimes, including conspiracy to make false statements to the FAA. A grand jury said the employees placed “the short-term business and monetary interests of SabreTech ahead of public safety concerns.”

If convicted on the federal charges, SabreTech faces possible fines and restitution of $6 million. The workers could be sentenced to up to 55 years in prison and fined $2.7 million on the conspiracy charges.

Although the NTSB investigation revealed that dozens of SabreTech employees handled the oxygen generators – from the time they were removed from two older ValuJet planes until the time they were loaded onto Flight 592 – only three were held responsible for the fatal crash.

According to the grand jury, Gonzalez, then the company’s director of maintenance, pressured workers to skip prescribed work steps and falsely swear that work had been completed, a practice known as “pencil whipping.”

Florence and Valenzuela were SabreTech mechanics who, prosecutors say, signed work cards stating that they had put safety caps on the generators when they had not. Instead, documents showed, they cut, tied, or taped over the pull strings in an attempt to keep them from igniting. The caps would have cost $9.16, according to testimony given to NTSB investigators.

Federal arrest warrants have been issued for Gonzalez, Florence, and Valenzuela. All three Miami residents are expected to turn themselves over to authorities this week.

Quinn charged Tuesday that SabreTech was being scapegoated for the accident, which led to tougher requirements for transporting hazardous cargo aboard commercial airliners.

“Why us? Why now? And why not the FAA or ValuJet?” Quinn said.

“The plain fact of the matter is that it was human error by many parties, rather than malicious intent by just a few, that caused this accident,” he added. “Justice is not served by today’s decision to attempt to criminalize human error.”

Mike Boyd, an Evergreen, Colo.-based aviation consultant, said he also thought the company and its employees were being scapegoated. “What is clear is that this airline was an accident waiting to happen,” Boyd said. “The FAA knew that, but the government didn’t want to shut it down.”

Indeed, three months before the crash, the FAA’s top overseer of ValuJet wrote to the discount airline to express concerns that it was “not meeting its duty to provide service with the highest degree of safety.”

After the crash, the Transportation Department’s inspector general announced a probe into allegations that FAA inspectors had been pressured to downplay concerns about the carrier’s safety record. That official, Mary Schiavo, then resigned in June 1996, telling the Senate Commerce Committee that she did not think then-Transportation Secretary Federico F. Pena took her concerns about ValuJet’s performance seriously.

The FAA has proposed a record fine of $2.5 million against SabreTech for improperly handling the canisters.

SabreTech was a subsidiary of a privately held St. Louis firm, Sabreliner. After the ValuJet crash, the company closed its Miami office and reopened in Orlando. Its assets were eventually sold to Aviation Management Systems Inc. of Orlando.

ValuJet, grounded after the crash, later merged with the Orlando-based carrier Airtran Airways, and flies under that name.

(Copyright 1999 by Mike Clary, Los Angeles Times. All Rights Reserved.)

Figure 8.1 ValuJet Flight 592 criminal indictment article

Using safety investigation results for criminal prosecution is similarly controversial. The Airline Pilots’ Association of Japan and the International Federation of Air Line Pilots’ Association (IFALPA) assert that admitting investigation results into evidence will have a detrimental effect on aviation safety. This became an issue after a June 8, 1997 Japan Airlines flight tragically ended in one death and 13 injuries. The accident was either the result of unexpected turbulence or excessive force used when the aircraft was on autopilot mode. Cynics of the Japanese court, which allowed the accident report’s admission at trial, argue that crewmembers will be hesitant to tell the truth because of fear of criminal repercussions.

Most ICAO regions have clearly defined rules that allow for joint investigation by police and accident prevention teams. Usually the joint investigation is given police priority. Opponents to criminally prosecuting individuals in aviation accidents include: the Flight Safety Foundation, the Royal Aeronautical Society, the Academie Nationale de l’Air et de l’Espace, the ICAO, the EU, EUROCONTROL, the International Federation of Air Traffic Controllers Association (IFATCA), and the IFALPA.

“Just culture” is an initiative created as a compromise between aviation safety and national criminal and civil liability laws. It represents a trusting environment in which individuals are not blamed for honest errors, but are encouraged to share safety-related information. This trusting environment allows a better assessment of actual safety risks and in turn better accident prevention. Willful violations, gross negligence, and destructive acts are not awarded the same non-punitive reporting; in fact, these acts are what prevent blanket immunity in the first place. In addition, the ICAO calls for a balance between the administration of justice and aviation safety via the Chicago Convention in Annex 13. Attachment E, Article 4 of the Chicago Convention contains the situations in which the authorities are allowed to access safety investigation information that is otherwise protected. By holding individuals responsible, the focus is shifted from discovering all causes and contributing factors of the accident to punishing individuals. So, while those punished individuals may be precluded from involvement in any future accidents, the same type of accident is no less likely to happen because of that punishment. Punishment has not been shown to be an effective means of improving the aviation industry’s safety. As it is, pilots, controllers, and mechanics have enough incentive to do their jobs correctly. Their jobs, their reputation, and often their lives are on the line. Fear of prosecution is merely an obstruction to safety.


Brazilian Prosecution (September 2006)

On September 29, 2006, Americans Joe Lepore and Jan Paladino were involved in a mid-air collision over Brazil. Lepore and Paladino were flying an Embraer Legacy 600 executive jet when they collided with a Boeing 737 with 154 people on board. Lepore and Paladino safely landed their jet, but the 737 crashed with no survivors. Brazilian officials blamed Lepore and Paladino’s negligence for the collision and originally charged them with endangering an aircraft. US officials blamed Brazil’s shoddy ATC systems for the collision.

The NTSB and the Brazilian equivalent found both the air traffic controllers and the pilots to be at fault. Lepore and Paladino were criminally charged with negligence because their aircraft’s transponder was not on. The transponder both transmits the aircraft’s altitude to ATC and operates the automatic collision warning system. Authorities did not determine whether the pilots failed to turn the transponder on or if it was malfunctioning. The Brazilian ATC system was blamed because, as revealed by black box recordings, Lepore and Paladino tried unsuccessfully to contact ATC at least 15 times in the last half hour before the collision. In addition, the Brazilian controller issued a flight level to them that was unusual both because of the direction they were headed and because it wasn’t what they had filed.

Lepore and Paladino, who landed safely at a Brazilian military base, spent 70 days confined in Brazil before the Brazilian government allowed them to return to the US. In a controversial outcome, an American judge gave the pilots four years and four months’ incarceration, but commuted the punishment to community service.

Swiss Prosecution (July 2002)

On July 1, 2002 a passenger jet carrying 57 passengers, mostly children, and 12 crewmembers collided in mid-air with a DHL cargo jet manned by two pilots over the towns of Überlingen and Owingen in southern Germany. All 71 people on board the two aircraft were killed. Despite the accident occurring over Germany, the private Swiss ATC company Skyguide controlled the airspace from Zürich, Switzerland. In May 2004, the German Federal Bureau of Aircraft Accidents Investigation determined that the accident was caused by shortcomings in the Swiss ATC system as well as onboard aircraft collision avoidance system ambiguities.

On August 7, 2006, Swiss prosecutors filed manslaughter charges against eight employees of Skyguide. The prosecution asked for prison terms of 6–15 months. In The verdict was announced in September 2007. Four managers were convicted. Three employees of Skyguide were given suspended prison sentences and the fourth was fined. The other four employees were exonerated.

Italian Prosecution (October 2001)

The Linate Airport disaster occurred on October 8, 2001. A Scandinavian Airlines aircraft collided on departure with a Cessna Citation business jet that taxied onto the active runway without clearance due to heavy fog at Linate Airport in Milan, Italy. All 114 people on the two aircraft were killed, as well as four on the ground.

The investigation revealed that the “immediate cause” of the accident was the incursion of the Cessna onto the active runway without ATC clearance. Blame was also placed on the airport layout and air traffic procedures.

Four people including the air traffic controller working at the time were charged with negligence and manslaughter. In April 2004 all were convicted. On appeal, two were released, not including the air traffic controller. Prison sentences had never before been handed down in Italy as a result of an aviation accident.

French Prosecution (2000)

An Air France Concorde crashed on July 25, 2000, shortly after takeoff from Charles de Gaulle International Airport near Paris. All 109 passengers and crew aboard the flight were killed, in addition to four people on the ground.

French investigators determined that the accident was caused by a titanium strip on the runway that had fallen off a Continental Airlines aircraft that had departed just prior to Air France’s departure. According to the investigation, the titanium strip created debris that damaged the plane’s fuel tanks and caused an explosion. Continental Airlines mechanics used the titanium strip to replace an aluminum strip, which was unauthorized by FAA regulations, according to the French investigation. Continental Airlines disputed the investigators’ conclusion.

Manslaughter charges were filed against Continental Airlines, two of its mechanics, two workers at Concorde, and one French civil aviation authority official. The individuals faced up to five years in prison. On December 6, 2010, Continental Airlines was found criminally responsible for the disaster by a Parisian court, was fined, and was ordered to pay Air France €1 million. A Continental Airlines mechanic was found criminally negligent and was given a 15-month suspended sentence. The others were cleared of all charges.

French Prosecution (January 1992)

On January 20, 1992 an Air Inter Airbus A320 crashed into the Sainte-Odile mountain as it approached Strasbourg Airport in eastern France. There were 87 fatalities and nine survivors. The accident investigation failed to identify a single reason for the accident. Potential causal factors included the quality air traffic guidance that the plane was given to direct it towards Strasbourg and the composition of the flight crew.

Six people were criminally charged with manslaughter. The potential prison sentence was two years each. The accused included an Airbus executive, two airline officials, two members of the French Civil Aviation Agency, and an air traffic controller. The French court ruled that Airbus along with Air France (Air Inter was merged into Air France in 1997) were both liable to pay damages. However, the six individual defendants were cleared of the manslaughter charges 14 years after the accident.

US Prosecutions

With the exception of ValuJet, there have not been additional criminal prosecutions of air carriers or their employees due to accidents. Air traffic controllers have never been criminally prosecuted in the US because of an aviation accident case. However, as Figure 8.2 demonstrates, other criminal prosecutions have occurred.

November 15, 2010

NEWARK, N.J. (AP): An investigation born of a fiery plane crash at a small New Jersey airport nearly six years ago culminated on Monday in convictions for two brothers accused of skirting safety regulations as they ran a charter jet company that catered to the rich and famous.

A federal jury took nearly four days of deliberations to convict Michael and Paul Brassington of fraud conspiracy in their operation of Fort Lauderdale, Fla.-based Platinum Jet Management between 2002 and 2005. Paul Brassington faces up to five years in prison, while his brother could get 20 or more.

The Brassingtons, natives of Guyana, founded Platinum in 2002 and eventually boasted a client list that included Luciano Pavarotti, Duran Duran, Keith Richards, Snoop Dogg, film producer Harvey Weinstein and Jay-Z. Some paid as much as $85,000 per flight.

It emerged during the trial that Jay-Z and then-girlfriend Beyonce flew from Las Vegas to Teterboro on Feb. 1, 2005, on the same Bombardier Challenger jet that crashed the next day en route to Chicago.

During the month-long trial, prosecutors painted a picture of a company that routinely violated FAA rules by, among other things, running commercial charter flights without the proper certification.

Even after Platinum legally partnered with an Alabama company, Darby Aviation, that had the proper certification, it used pilots that weren’t qualified for commercial flights and falsified documents to cover its tracks, prosecutors said.

The Teterboro accident in February 2005 was the culmination of Platinum’s deceitful practices, the government alleged, because Michael Brassington deliberately understated his planes’ weights in a scheme to save money by loading up on cheap fuel at airports like Teterboro.

The plane failed to take off and tore across a busy intersection and into the side of a clothing warehouse, starting a fire. All 11 people in the plane were injured, as were several more on the ground. The government estimated damages at $30 million to $40 million.

A federal report blamed the accident on the plane’s center of gravity being too far forward – the result of overfueling masked by Michael Brassington’s earlier lies, prosecutors contended.

The defense offered witnesses who said the crash more likely was caused by a malfunction with the plane’s steering mechanism, which co-pilot Carlos Salaverria and Kimberling both said froze during the takeoff roll.

Defense attorneys sought to portray the Brassingtons as the victims of bad legal advice through the testimony of an attorney who said he advised them they could fly charters without a commercial certificate if they used fewer than six charter brokers.

Bruce Reinhart, attorney for Paul Brassington, declined to comment on Monday. Michael Salnick, representing Michael Brassington, didn’t return a message seeking comment.

In addition to the conspiracy and endangerment counts, Michael Brassington was also convicted on seven counts of making false statements. He was acquitted of 12 other false statement counts, and Paul Brassington was acquitted of four.

Sentencing was set for March 7. The endangerment count carries a maximum 20-year prison sentence, and the conspiracy and false statement counts carry five-year maximums, according to the US attorney’s office.

Seven people connected to Platinum were indicted in 2009, and three have pleaded guilty. One, former maintenance chief Brien McKenzie, faced trial with the Brassingtons, but had his case thrown out by US District Judge Dennis Cavanaugh, who ruled before jury deliberations that the government hadn’t proved its case.

The final defendant, pilot John Kimberlng, had his case severed and is awaiting trial in Florida.

(Copyright 2010 by the Associated Press. All Rights Reserved.)

Figure 8.2 Criminal convictions for violating safety rules article


Investigation Considerations

The NTSB has priority over any investigation by another department, agency, or instrumentality of the US government. However, this jurisdiction is not exclusive. Investigations by other governmental entities often run concurrently with an NTSB accident investigation. Accordingly, other investigative entities frequently undertake criminal investigations and prosecute misconduct related to accidents being investigated by the NTSB. The FBI and the NTSB have a memorandum of understanding in effect regarding accident investigations. Both agencies share evidence gathered with each other.

Those involved in the aviation industry facing an NTSB investigation when there is a possibility of criminal wrongdoing should be very careful in providing any evidence to the NTSB. Statements (verbal or written) made to the NTSB are not afforded any form of privilege in criminal prosecutions and may be used against the party making the statement according to the rules of evidence. In addition, NTSB investigative files and records are readily available to other government entities with the authority to criminally prosecute.2 Aviation lawyers often counsel clients faced with such situations to invoke their Fifth Amendment rights against self-incrimination.

Crimes committed onboard an en-route flight generally fall under federal jurisdiction, but may fall under another countries’ jurisdiction or even state jurisdiction depending on the choice of law factors. For instance, if a foreign citizen sexually assaults a child over international waters en-route from Sweden to the US, US officials can arrest and indict the perpetrator upon landing in the US, even though the actual prosecution may occur in the perpetrator’s home country. Criminal prosecutions will not compensate any victims of personal injury and thus civil remedies should be considered.

Federal Offense Examples

Title 49, Chapter 4653 makes all of the following conduct a federal offense if committed within the Special Aircraft Jurisdiction of the US: assault (18 U.S.C. §113); maiming (18 U.S.C. §114); receipt of stolen property (18 U.S.C. §662); murder (18 U.S.C. §1111); manslaughter (18 U.S.C. §1112); attempted murder or manslaughter (18 U.S.C. §1113); robbery (18 U.S.C. §2111); and sexual abuse (Chapter 109A). For a review of the elements that must be proven by the prosecution, please refer to the pertinent statute.

Special Aircraft Jurisdiction of the US incudes any of the following aircraft in flight:4

a. a civil aircraft of the US;

b. an aircraft of the armed forces of the US;

c. another aircraft in the US;

d. another aircraft outside the US:

i. (that has its next scheduled destination or last place of departure in the US, if the aircraft next lands in the US;

ii. on which an individual commits an offense (as defined in the Convention for the Suppression of Unlawful Seizure of Aircraft) if the aircraft lands in the US with the individual still on the aircraft; or

iii. against which an individual commits an offense (as defined in subsection (d) or (e) of Article I, section I of the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation) if the aircraft lands in the US with the individual still on the aircraft;

e. any other aircraft leased without crew to a lessee whose principal place of business is in the US or, if the lessee does not have a principal place of business, whose permanent residence is in the US.

Accordingly, special aircraft jurisdiction of the US covers crimes committed by: US civil aircraft with an N-number, US military aircraft, any other aircraft within the US, or any aircraft outside the US that originated or is destined to a location within the US.

Aviation-Specific Violations

This section lists various aviation-related criminal offenses that may result in fines or imprisonment. A comprehensive review of every regulation or law that applies to aviation is well beyond the scope of this text. For specific guidance on the meaning of a statute, please refer to the specific definitions statute pertaining to that specific law.5

Entering Aircraft or Airport Area in Violation if Security Requirements (49 U.S.C. §46314)

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