United States v. Sean Fitzgerald

906 F.3d 437
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 15, 2018
Docket17-2285
StatusPublished
Cited by10 cases

This text of 906 F.3d 437 (United States v. Sean Fitzgerald) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sean Fitzgerald, 906 F.3d 437 (6th Cir. 2018).

Opinions

McKEAGUE, Circuit Judge.

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 .

*441I

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 *442rejecting 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.

II

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.

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906 F.3d 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sean-fitzgerald-ca6-2018.