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United States v. Fitzgerald

United States Court of Appeals, Sixth Circuit

October 15, 2018

United States of America, Plaintiff-Appellee,
Sean Michael Fitzgerald, Defendant-Appellant.

          Argued: April 26, 2018

          Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:16-cr-00178-1-Robert J. Jonker, Chief District Judge.


          Avram D. Frey, GIBBONS P.C., Newark, New Jersey, for Appellant.

          Justin M. Presant, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

         ON BRIEF:

          Avram D. Frey, Lawrence S. Lustberg, GIBBONS P.C., Newark, New Jersey, for Appellant.

          Justin M. Presant, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.



         On August 25, 2016, Talon Air pilot Sean Fitzgerald showed up rip-roaring drunk to the Traverse City, Michigan, airport. Fitzgerald was set to fly that morning, so he went about readying a jet for take-off. He conducted a walk-around safety check before entering the cockpit, where he calibrated the altimeter, programmed the flight-management system, turned on the auxiliary power unit, and requested flight clearance from air-traffic control.

         Thankfully for the passengers yet to board, Fitzgerald's co-pilot recognized his inebriation and alerted Talon Air executives, who in turn notified local law enforcement. Fitzgerald was arrested and charged under 18 U.S.C. § 342, which makes it a crime to operate a common carrier while intoxicated. The jury convicted Fitzgerald, and the district court sentenced him to one year and one day in prison and to three years of supervised release. On appeal, Fitzgerald contends that the actions he performed were not enough to operate the aircraft within the meaning of § 342, that the jury was wrongly instructed, and that the district court erred at his sentencing. We AFFIRM.


         On August 25, 2016, Sean Fitzgerald and Manuel Ramirez were scheduled to fly a private jet for Talon Air from Traverse City, Michigan to Bedford, Massachusetts. The two planned to meet in the lobby of their hotel roughly two hours before their 8:20 a.m. scheduled departure. Fitzgerald showed up late, and Ramirez said he immediately "felt" alcohol on Fitzgerald-his breath smelled of it, and his eyes were bloodshot. Ramirez three times pressed Fitzgerald during their drive to the airport whether he was fit to fly. Fitzgerald three times denied that anything was amiss.

         Ramirez and Fitzgerald arrived at the airport around 7:00 a.m. Ramirez questioned Fitzgerald a fourth time, but Fitzgerald again insisted he was fine. Unconvinced, Ramirez took matters into his own hands. He asked Fitzgerald to stay put, then called his superiors at Talon Air, who in turn notified the Traverse City Police Department.

         Meanwhile, Fitzgerald began to prepare the airplane for flight. Fitzgerald ordered fuel; completed a "walkaround" inspection of the outside of the airplane; and entered the cockpit, where he calibrated the altimeter, programmed the flight-management system, turned on the auxiliary power unit, and requested flight clearance from air-traffic control.[1]

         The police soon after arrived and found Fitzgerald in the cockpit, still tinkering with the airplane's controls. The police ran Fitzgerald through a visual sobriety test, which Fitzgerald promptly failed. Two subsequent breath tests confirmed what his bloodshot eyes suggested: Fitzgerald was very drunk, registering a blood-alcohol content (BAC) of 0.301% and 0.312%.[2]Fitzgerald was arrested and taken to a nearby hospital for further examination; a blood test 90 minutes later revealed a 0.343% BAC. For reference, a BAC of .10% gives rise to a presumption of intoxication under the statute. 18 U.S.C. § 343. FAA regulations, meanwhile, prohibit acting or attempting to act as a crewmember of a civil aircraft with a BAC of 0.04% or higher-meaning that Fitzgerald's BAC was about eight times over that limit. 14 C.F.R. § 91.17(a)(4).

         The government charged Fitzgerald with operating a common carrier while under the influence of alcohol in violation of 18 U.S.C. § 342. Fitzgerald moved to dismiss the indictment on the basis that his preflight actions did not constitute operating the aircraft, but the district court denied the motion. The parties nevertheless continued to wrangle in the lead-up to trial about what it means to "operate" an airplane. In general, Fitzgerald argued for a more restrictive definition, contending that only actions taken once passengers were aboard or the engines were turned on could constitute operation. The government urged a more flexible definition without such bright-line cutoffs. After extensive briefing and a few iterations, the district court landed on the instruction at the heart of this case.

         At trial, Fitzgerald admitted that he was intoxicated and that the airplane was a common carrier. The lone issue, therefore, was whether Fitzgerald "operated" the airplane. After proofs closed, Fitzgerald moved for a judgment of acquittal, which the district court denied. The jury convicted Fitzgerald, and the district court-after rejecting Fitzgerald's request for a downward departure-sentenced him to one year and one day in prison and to three years of supervised release. Fitzgerald now challenges the district court's interpretation of "operate," the sufficiency of the evidence supporting his conviction, the jury instructions, and his sentence.


         The core question in this case is one that neither we nor any of our sister circuits have confronted: what does it mean to "operate" a common carrier under 18 U.S.C. § 342? Fitzgerald contends that the district court's erroneous definition of the term led it to mistakenly deny his motion for a judgment of acquittal and, eventually, caused the jury to wrongfully convict him. Section 342 provides:

Whoever operates or directs the operation of a common carrier while under the influence of alcohol or any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), shall be imprisoned not more than fifteen years or fined under this title, or both.

         The government thus had to prove three elements beyond a reasonable doubt: that Fitzgerald (1) operated or directed the operation of (2) a common carrier (3) while intoxicated. Because Fitzgerald concedes the aircraft he was preparing to fly was a common carrier and that he was intoxicated, the only question is the first element-whether his actions sufficed to "operate" the airplane. The district court instructed the jury as follows on the meaning of operate:

The term "operate" generally means to run or control the functioning of something. For a commercial pilot this term includes anything the pilot does or directs in his capacity as a pilot before, during, or after flight, but only if the evidence convinces you beyond a reasonable doubt that the activity or direction was directly and proximately linked to actual operational or functional requirements for the flight and not simply some administrative or clerical task.

         Fitzgerald says the instruction swept too broadly. He argues that to operate an airplane is to control its movement, and that because the airplane never moved-the engines in fact never started-he did not operate the aircraft. The government objects that Fitzgerald's definition is unduly cramped and that the statute covers "the operation of the plane in preparation for it to move." Appellee Br. at 23 (emphasis added).[3] The district court's instruction, the government contends, rightly accounted for this.

         We review this question of statutory interpretation de novo, United States v. Miller, 734 F.3d 530, 539 (6th Cir. 2013), though a well-trod path guides our inquiry. We start with the disputed term itself, which, if left undefined in the statute, must be given "its ordinary or natural meaning." Id. at 540 (quoting Smith v. United States, 508 U.S. 223, 228 (1993)). If a word in isolation is susceptible of multiple meanings, however, we work outward and examine the statutory context, "consider[ing] not only the bare meaning of the word but also its placement and purpose in the statutory scheme." Id. (quoting Bailey v. United States, 516 U.S. 137, 145 (1995)). Last of all, working only within the range of "textually permissible meanings," we consider which of those interpretations would serve, rather than frustrate, the statute's manifest purpose. Antonin Scalia & Bryan A. Garner, Reading Law 57 (2012); see John Hancock Mut. Life Ins. Co. v. Harris Tr. & Sav. Bank, 510 U.S. 86, 94-95 (1993) (interpreting "language of the governing statute" in light of the statute's "object and policy").

         The Ordinary Meaning of "Operates." The statute does not define the term "operate," so we can assume that Congress intended the word be given its ordinary meaning. Miller, 734 F.3d at 540. Dictionaries provide a helpful proxy. One defines "operate" as: "To cause or actuate the working of; to work (a machine, etc.)." Oxford English Dictionary 848 (2d ed. 1989). Another: "To work or use a machine, apparatus, or the like." Random House Dictionary of the English Language 1357 (2d ed. 1987). And another: "to cause to function usu[ally] by direct personal effort: work (a car) (operating a drill press)." Webster's Third New International Dictionary of the English Language 1581 (3d ed. 1986). Finally, there is the definition the district court incorporated directly into the jury instructions: "To run or control the functioning of." American Heritage Dictionary 1233 (4th ed. 2000).

         Under each of the above definitions, Fitzgerald could be deemed to have "operated" the aircraft when he took certain preflight steps. Recall what Fitzgerald did: he calibrated the altimeter (which calculates altitude), programmed the flight-management system (which controls navigation), turned on the auxiliary power unit (which provides energy for functions other than propulsion), and requested flight clearance from air-traffic control. Fitzgerald's actions by themselves were not sufficient to "cause" the airplane to take flight (as the Oxford and Webster's Dictionaries would say), but they were necessary steps along the way. And Fitzgerald was certainly "work[ing] or us[ing] a machine" under the Random House definition-he adjusted its instruments and programmed its flight path. On the same reasoning, Fitzgerald appears to have "run or control[led] the functioning of" the airplane under the American Heritage definition. The upshot of our dive into the dictionaries, then, is that "operate" comprises a wide universe of actions-anything that causes a machine to work, works a machine, or controls a machine's functioning. For the sake of clarity moving forward, we use the American Heritage definition that the district court used (a definition, by the way, to which both parties acceded below): to "operate" something is to run or control its functioning.

         Still, questions of kind and degree remain. Ordinary usage may teach us that to operate something is to run or control it, but what kind of control must one exert over an airplane? Surely not every act of control can count-that would sweep in every mechanic who swaps out a part before take-off and any flight attendant who seals the airplane doors. And how much control must a pilot exercise? Commercial aircraft are almost always guided by two pilots; if one performs only 10% of those tasks necessary to operate the plane, has he operated it? Though we can safely say that a pilot "operates" a plane even while auto-pilot is engaged, what of the pilot who calibrates the plane's instruments while still on the ground? The word "operates" by itself does not suggest obvious limiting principles that help answer these questions. So, to context we turn. Miller, 734 F.3d at 540.

         Statutory Context. However ambiguous "operates" may be in isolation, "context gives meaning." United States v. Santos, 553 U.S. 507, 512 (2008) (stating that a statutory term must be read "as it is used in the federal . . . statute"). Indeed, even were we convinced that "operates" had a clear definition in isolation, "[t]he meaning of statutory language, plain or not, depends on context." Miller, 734 F.3d at 540.

         Fitzgerald contends that the statutory context strengthens his interpretation. Because § 342 is devoted to common carriers-planes, trains, buses, and ships-Fitzgerald argues "operates" must "be viewed as control relative to movement." That is, it's not enough to define operates as to "run or control the functioning of" the machine; instead, the person must "run or control the functioning of" the machine's "essential function." And since a common carrier's essential function is to move passengers from point A to point B, Fitzgerald says the ordinary meaning of operating a common carrier is to run or control "the movement necessary for travel and transportation." Fitzgerald hopes some analogies will illustrate his point. He argues that one does not "operate" a computer simply by opening the hardware and making a repair, even if one would say that action "controls the computer's functioning." Instead, a person operates a computer only when she uses it for its "central function, i.e., use for personal computing." Likewise, Fitzgerald says one does not "operate" a bicycle by giving it a tune-up; that occurs only when a person "control[s] its essential function, i.e., by riding it."

         Fitzgerald has a point, but he takes it too far. Section 342 is indeed a law about common carriers, all of which have the goal of moving paying passengers from one place to another. It does make sense, then, to interpret "operates" by reference to movement. But why should the contextual North Star be "common carrier," as opposed to the specific type of common carrier at issue in a given case? A far more natural and sensible approach is to consider what it means to operate a bus, or a train, or a ship-or, in this case, an airplane-rather than to treat common carriers as a monolithic entity. A look to § 342's neighbor shows that Congress has done just that. See 18 U.S.C. § 341 (distinguishing various types of common carriers). And the safe and effective movement of an airplane is not determined by actions taken only after passengers board or the engines start or the airplane moves, which appear to be Fitzgerald's favored lines for demarcating when "operating" can begin. To the contrary, actions taken before any of these arbitrary boxes are checked might influence the aircraft's movement just as much as those taken after-a truth well borne out by the evidence in this case.[4] So, Fitzgerald is right that "operates" should be interpreted in a way that accounts for common carriers' essential movement function, but the government is right that "operates" should be read in light of the common-sense understanding that the safe and effective movement of a complex airplane depends on actions taken long before actual movement ever begins.[5]

         Where does that leave us in our interpretive puzzle? Somewhere, we think, right around the jury instructions given by the district court. The instructions reflected the idea that to "operate" a common carrier is to control its movement by emphasizing that Fitzgerald's actions could only count as operating if they were connected to "the flight" of the airplane. Yet the district court also understood that a definition limited only to activities during the flight itself would not work, because that would fail to account for the critical preflight activities pilots must complete to actually (and safely) move an aircraft. So the district court interpreted "operates" to include pilot actions "directly and proximately linked to actual operational or functional requirements for the flight."

         These instructions fit nicely in the context of operating a complex airplane, including the reality that preflight actions might well dictate the airplane's movement once the engines are fired up and the plane is in the air. As the district court explained in its pretrial ruling on the instructions issue:

[O]nce a commercial pilot steps on board the aircraft and into the cockpit, it is hard to characterize any activity undertaken as merely administrative. The pilot is now in the physical location where he or she can access all of the aircraft controls. The required pre-flight checks involve physically testing and checking the controls that will be used in flight-radio, rudder pedals, circuit breakers, autopilot and fuel gauges to name a few. Some of what the pilot does may actually directly control the function of the aircraft, such as inputting flight-plan parameters that will engage when the autopilot feature takes over in flight. The Court's proposed language takes these situations into account[.]

R. 38, PID 107 (emphasis added). And indeed, the evidence at trial showed Fitzgerald completed at least one of those preflight actions that directly control the airplane's in-flight movement. Fitzgerald's co-pilot, Ramirez, testified that he saw Fitzgerald "inputting information" into the aircraft's "flight management system," which Ramirez said "is basically the navigation brain ...

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