USA V. FOREST KIRST
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Opinion
FILED FOR PUBLICATION NOV 22 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30193
Plaintiff-Appellee, D.C. Nos. 3:17-cr-00180-RRB-DMS-1 v. 3:17-cr-00180-RRB-DMS
FOREST MITCHELL KIRST, OPINION Defendant-Appellant.
Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding
Argued and Submitted March 17, 2022 San Francisco, California
Before: William A. Fletcher, Ronald M. Gould, and Daniel P. Collins, Circuit Judges.
Opinion by Judge W. Fletcher; Partial Concurrence and Partial Dissent by Judge Collins SUMMARY *
Criminal Law
The panel affirmed Forest Kirst’s conviction on two counts of obstructing a pending proceeding, in violation of 18 U.S.C. § 1505, and affirmed the district court’s assessment of a $5,000 fine, in a case in which the National Transportation Safety Board (NTSB) investigated the crash of a small plane that Kirst piloted and in which the Federal Aviation Administration (FAA) revoked Kirst’s airman certificate.
The plane crashed as Kirst attempted to fly over Atigun Pass in the Brooks Range in Alaska. During both the investigation and Kirst’s appeal of the revocation of his airman certificate, Kirst claimed that the plane was climbing through 5,500 to 5,700 feet with a target altitude of 6,000 feet as it approached the pass. GPS data showed that the plane was flying at an altitude more than 1,000 feet lower than what Kirst claimed. The proceeding in Count One was the NTSB investigation. The proceeding in Count Two was the appeal before the NTSB of the FAA’s revocation of his airman certificate.
Challenging his conviction on Count One, Kirst argued that the NTSB’s accident investigation was not a pending “proceeding” within the meaning of § 1505, because the statute covers only proceedings where an agency has regulatory or adjudicative authority—authority that the NTSB lacks during an accident investigation. The panel wrote that even if it were not reviewing for plain error, it would affirm, holding that the NTSB’s investigation of Kirst’s plane crash was a “proceeding” within the meaning of § 1505. The panel explained that in the course of conducting its investigation, the NTSB had both subpoena power and the power to compel testimony under oath, and that under United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994), whose reasoning the panel found persuasive, that is enough.
Rejecting Kirst’s challenge to the sufficiency of the evidence on both counts, the panel held that, viewing the evidence in the light most favorable to the government, a reasonable factfinder could have found corrupt intent.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The district court instructed the jury that an act is material under § 1505 “if it has a natural tendency to influence, or is capable of influencing, the agency’s decisions or activities.” Kirst argued that the phrase “or activities” in the instruction was improper because it allowed the jury to convict based on Kirst’s statements that did not affect the NTSB’s decisions or decision making process. The panel held that the district court did not err in instructing the jury on the materiality element. The panel noted that this court previously rejected the argument that the word “activities” enabled a jury to find a statement material even if it was incapable of influencing an agency’s decisions. The panel also noted that the district court made clear that Kirst’s statements must have been capable of influencing the NTSB investigation or appeal, not just any activity of the agency.
The panel held that the district court did not commit clear error in finding Kirst able to pay the $5,000 fine, as there was no evidence before the district court showing that Kirst was unable to pay the fine, or was likely to become unable to pay it.
Judge Collins concurred in the judgment in part and dissented in part. Reviewing for plain error, he would reverse Kirst’s conviction on Count One and remand for enter of a judgment of acquittal on that count. He wrote that because the NTSB lacks any regulatory or enforcement authority over the accidents it investigates, there is no sense in which the NTSB’s investigation into Kirst’s accident involved the “administration of the law” under which that proceeding was being conducted within the meaning of § 1505. He wrote that because the proceeding at issue in Count Two involved Kirst’s appeal of the FAA’s revocation of his airman certificate, that proceeding did involve the “administration of the law” under which that proceeding was being conducted, and it therefore fell within the purview of § 1505. He agreed with the majority’s opinion to the extent it rejected Kirst’s further challenges to his conviction and sentence on Count Two.
COUNSEL
Stephen L. Corso (argued) and Charisse Arce, Assistant United States Attorneys; E. Bryan Wilson, Acting United States Attorney; Office of the United States Attorney, Anchorage, Alaska; for Plaintiff-Appellee. Gene D. Vorobyov (argued), San Francisco, California, for Defendant-Appellant. W. Fletcher, Circuit Judge:
On August 24, 2014, defendant Forest M. Kirst piloted a small plane in
Alaska on a charter flight carrying three paying passengers. The plane crashed as
Kirst attempted to fly over Atigun Pass in the Brooks Range. One of the
passengers died a month later from injuries sustained in the crash.
The National Transportation Safety Board (“NTSB”) investigated the crash,
and the Federal Aviation Administration (“FAA”) revoked Kirst’s airman
certificate. During both the investigation and Kirst’s appeal of the revocation of
his airman certificate, Kirst claimed that the plane was climbing through 5,500 to
5,700 feet with a target altitude of 6,000 feet as it approached the pass. GPS data
showed that the plane was flying at an altitude more than 1,000 feet lower than
what Kirst claimed.
The government filed three criminal charges against Kirst. Counts One and
Two charged Kirst with obstructing a pending “proceeding,” in violation of 18
U.S.C. § 1505. The proceeding in Count One was the NTSB investigation. The
proceeding in Count Two was the appeal before the NTSB of the FAA’s
revocation of his airman certificate. Count Three charged Kirst with piloting an
aircraft without a valid airman certificate, in violation of 49 U.S.C. § 46306(b)(7).
A jury returned guilty verdicts on Counts One and Two and an acquittal on Count
2 Three. The district court sentenced Kirst to 12 months and 1 day in prison on
Counts One and Two, to run concurrently; 3 years of supervised release; and a
$5,000 fine.
On appeal, Kirst challenges his conviction on Count One, arguing that the
NTSB investigation was not a “proceeding” within the meaning of § 1505.
Further, Kirst challenges his convictions on both Counts One and Two, arguing
that there was insufficient evidence to support the convictions and that a jury
instruction was improper. Finally, Kirst challenges the $5,000 fine, arguing that he
is unable to pay it.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
I. Background
A.
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FILED FOR PUBLICATION NOV 22 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-30193
Plaintiff-Appellee, D.C. Nos. 3:17-cr-00180-RRB-DMS-1 v. 3:17-cr-00180-RRB-DMS
FOREST MITCHELL KIRST, OPINION Defendant-Appellant.
Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding
Argued and Submitted March 17, 2022 San Francisco, California
Before: William A. Fletcher, Ronald M. Gould, and Daniel P. Collins, Circuit Judges.
Opinion by Judge W. Fletcher; Partial Concurrence and Partial Dissent by Judge Collins SUMMARY *
Criminal Law
The panel affirmed Forest Kirst’s conviction on two counts of obstructing a pending proceeding, in violation of 18 U.S.C. § 1505, and affirmed the district court’s assessment of a $5,000 fine, in a case in which the National Transportation Safety Board (NTSB) investigated the crash of a small plane that Kirst piloted and in which the Federal Aviation Administration (FAA) revoked Kirst’s airman certificate.
The plane crashed as Kirst attempted to fly over Atigun Pass in the Brooks Range in Alaska. During both the investigation and Kirst’s appeal of the revocation of his airman certificate, Kirst claimed that the plane was climbing through 5,500 to 5,700 feet with a target altitude of 6,000 feet as it approached the pass. GPS data showed that the plane was flying at an altitude more than 1,000 feet lower than what Kirst claimed. The proceeding in Count One was the NTSB investigation. The proceeding in Count Two was the appeal before the NTSB of the FAA’s revocation of his airman certificate.
Challenging his conviction on Count One, Kirst argued that the NTSB’s accident investigation was not a pending “proceeding” within the meaning of § 1505, because the statute covers only proceedings where an agency has regulatory or adjudicative authority—authority that the NTSB lacks during an accident investigation. The panel wrote that even if it were not reviewing for plain error, it would affirm, holding that the NTSB’s investigation of Kirst’s plane crash was a “proceeding” within the meaning of § 1505. The panel explained that in the course of conducting its investigation, the NTSB had both subpoena power and the power to compel testimony under oath, and that under United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994), whose reasoning the panel found persuasive, that is enough.
Rejecting Kirst’s challenge to the sufficiency of the evidence on both counts, the panel held that, viewing the evidence in the light most favorable to the government, a reasonable factfinder could have found corrupt intent.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The district court instructed the jury that an act is material under § 1505 “if it has a natural tendency to influence, or is capable of influencing, the agency’s decisions or activities.” Kirst argued that the phrase “or activities” in the instruction was improper because it allowed the jury to convict based on Kirst’s statements that did not affect the NTSB’s decisions or decision making process. The panel held that the district court did not err in instructing the jury on the materiality element. The panel noted that this court previously rejected the argument that the word “activities” enabled a jury to find a statement material even if it was incapable of influencing an agency’s decisions. The panel also noted that the district court made clear that Kirst’s statements must have been capable of influencing the NTSB investigation or appeal, not just any activity of the agency.
The panel held that the district court did not commit clear error in finding Kirst able to pay the $5,000 fine, as there was no evidence before the district court showing that Kirst was unable to pay the fine, or was likely to become unable to pay it.
Judge Collins concurred in the judgment in part and dissented in part. Reviewing for plain error, he would reverse Kirst’s conviction on Count One and remand for enter of a judgment of acquittal on that count. He wrote that because the NTSB lacks any regulatory or enforcement authority over the accidents it investigates, there is no sense in which the NTSB’s investigation into Kirst’s accident involved the “administration of the law” under which that proceeding was being conducted within the meaning of § 1505. He wrote that because the proceeding at issue in Count Two involved Kirst’s appeal of the FAA’s revocation of his airman certificate, that proceeding did involve the “administration of the law” under which that proceeding was being conducted, and it therefore fell within the purview of § 1505. He agreed with the majority’s opinion to the extent it rejected Kirst’s further challenges to his conviction and sentence on Count Two.
COUNSEL
Stephen L. Corso (argued) and Charisse Arce, Assistant United States Attorneys; E. Bryan Wilson, Acting United States Attorney; Office of the United States Attorney, Anchorage, Alaska; for Plaintiff-Appellee. Gene D. Vorobyov (argued), San Francisco, California, for Defendant-Appellant. W. Fletcher, Circuit Judge:
On August 24, 2014, defendant Forest M. Kirst piloted a small plane in
Alaska on a charter flight carrying three paying passengers. The plane crashed as
Kirst attempted to fly over Atigun Pass in the Brooks Range. One of the
passengers died a month later from injuries sustained in the crash.
The National Transportation Safety Board (“NTSB”) investigated the crash,
and the Federal Aviation Administration (“FAA”) revoked Kirst’s airman
certificate. During both the investigation and Kirst’s appeal of the revocation of
his airman certificate, Kirst claimed that the plane was climbing through 5,500 to
5,700 feet with a target altitude of 6,000 feet as it approached the pass. GPS data
showed that the plane was flying at an altitude more than 1,000 feet lower than
what Kirst claimed.
The government filed three criminal charges against Kirst. Counts One and
Two charged Kirst with obstructing a pending “proceeding,” in violation of 18
U.S.C. § 1505. The proceeding in Count One was the NTSB investigation. The
proceeding in Count Two was the appeal before the NTSB of the FAA’s
revocation of his airman certificate. Count Three charged Kirst with piloting an
aircraft without a valid airman certificate, in violation of 49 U.S.C. § 46306(b)(7).
A jury returned guilty verdicts on Counts One and Two and an acquittal on Count
2 Three. The district court sentenced Kirst to 12 months and 1 day in prison on
Counts One and Two, to run concurrently; 3 years of supervised release; and a
$5,000 fine.
On appeal, Kirst challenges his conviction on Count One, arguing that the
NTSB investigation was not a “proceeding” within the meaning of § 1505.
Further, Kirst challenges his convictions on both Counts One and Two, arguing
that there was insufficient evidence to support the convictions and that a jury
instruction was improper. Finally, Kirst challenges the $5,000 fine, arguing that he
is unable to pay it.
We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
I. Background
A. The Plane Crash
On August 24, 2014, Kirst piloted a small plane on a charter flight out of
Fairbanks, Alaska, carrying Darrel Spencer, Daphne McCann (Spencer’s sister-in-
law), and Marcene Nason (McCann’s sister). Spencer had an interest in
photography and booked the flight with Kirst for $3,500 to photograph polar bears.
The weather on the day of the flight was clear, with a light wind. The plane
took off from Fairbanks, stopped at Bettles for a roughly 20-minute break, and
continued north toward Prudhoe Bay. The plan was to fly along the coast to look
3 for polar bears. Spencer sat in the front passenger seat. McCann sat behind Kirst,
and Nason sat behind Spencer.
As the plane headed north toward Prudhoe Bay, the passengers spotted a
moose and wanted to photograph it. Kirst flew lower and circled the moose for a
few minutes before climbing to a higher altitude.
About 15 or 20 minutes later, the plane approached Atigun Pass. The
elevation of the pass is 4,400 feet. The elevation of the surrounding peaks is a little
over 6,000 feet. McCann testified at trial that the plane was flying below the peaks
of the mountains as it approached the pass and that she could see the peaks only by
looking up. McCann estimated that the plane was between two-thirds to three-
quarters of the way from the ground to the top of the mountains. McCann noticed
no vibrations, damage to the propeller, or anything else unusual.
Two witnesses saw the plane as it flew over Chandalar Shelf on the way to
Atigun Pass. One of the witnesses testified at trial that there is a “steep incline”
after the shelf before reaching the pass. That witness estimated that the plane was
flying roughly 500 feet above the shelf. The other witness was driving a gravel
truck on the road leading up to the shelf. That witness estimated that the plane was
flying roughly 100 feet above the shelf when he first saw it. When the witness
4 reached the shelf, he saw the plane again. He estimated that the plane was now
about two miles away and about 1,000 feet above the ground.
Several pipeline workers saw the crash. One worker testified at trial that the
plane was “flying real low,” that it did not “seem out of control,” and that the
wings were “level.” He testified: “I just saw it coming to a land, and . . . it went to
its right side, and it just kind of like stopped and slid like a little bit down the hill.”
That worker testified that the plane appeared to be flying normally and that it was
staying on a flight path parallel to the ground. A second worker testified that when
he saw the plane it was “between 250 [and] 500 feet” off the ground. He had
previously estimated, in talking to an investigator, that the plane had been “500 to
800 feet” above him. He testified that the engine was “revving,” with the “rpm
picking up.” A third worker described the crash:
[I]t just kind of shocked me how low it was flying. . . . Four or five seconds later, it was on the ground. . . . [I]t was a miracle landing. . . . [I]t was countoured to the mountain. . . . [W]hen [it] hit, it just stopped and then it just slid downhill a little bit.
Passenger McCann testified:
We banked to the right while we were looking at the mountains, and I felt like an air pocket, like when you’re in a big plane and you go whoop, and your stomach goes up, and the next time I opened my eyes, we were on the ground.
5 Several pipeline workers rushed to the plane after the crash. When they
arrived, Kirst asked them to remove the canopy (the cockpit cover) to get him and
the passengers out of the plane. Kirst suffered serious injuries to his back. Despite
his injuries, Kirst was lucid and communicative. He gave clear instructions about
turning off the fuel system and appeared to be aware of what was happening. Kirst
instructed an Alaska Department of Transportation worker to turn off the master
switch and the ignition. That worker noticed that one of the propeller blades was
missing and that the throttle was bent. He testified at trial, “If it was at full throttle,
the throttle would be completely to . . . the panel, and I remember it being out a
little bit and bent down.”
Kirst made several statements immediately after the crash. One of the
workers testified at trial that as Kirst sat on the rocks after being removed from the
plane, he said, “Well, there goes insurance, there goes my business.” The worker
testified that Kirst repeated to himself, “What the heck happened,” “Did I come in
too low,” and appeared to run through the possibilities of what happened before the
crash. After another worker helped carry Kirst down to an ambulance, that witness
testified that Kirst said that his business was ruined, that he was in a lot of trouble
for the crash, and that a downdraft had partially caused the crash. Kirst told one of
the Department of Transportation workers that he had been 1,000 feet above the
6 mountaintops, that a downdraft caught the plane, and that increasing the power did
not help the plane escape the downdraft. In the ambulance, Kirst told one of the
female passengers, “If I were your husband, I would punch me in the nose.” When
asked why, Kirst responded that it was because they got into the crash. Kirst
explained to a medic that he “ran out of horsepower.”
Spencer died a month later from injuries suffered in the crash.
B. The NTSB Investigation
State troopers reported the crash to the NTSB and the FAA. The NTSB is an
independent federal agency responsible, inter alia, for investigating transportation
accidents and deciding pilots’ airman certification appeals. See 49 U.S.C. §§ 1131,
1133. In its investigatory role, the NTSB is charged with “establish[ing] the facts,
circumstances, and cause or probable cause” of aircraft accidents. Id. § 1131. The
NTSB has no regulatory or enforcement authority. The FAA has enforcement
authority to revoke a pilot’s airman certificate. The NTSB and the FAA exchange
factual information in the course of their investigations of aviation accidents. 49
C.F.R. §§ 831.5(a)(5), 831.21 (2020).
On the day after the crash, the NTSB launched a limited accident
investigation. A limited investigation involves gathering information from first
7 responders and witnesses without sending an investigator to the crash site. No
NTSB investigator visited the crash site.
The NTSB concluded that weather was not an issue in the crash. Data from
a weather station 2,500 feet from the accident site indicated no gusty, downdraft-
type winds. A photograph taken from a Department of Transportation building
before the accident showed no cloud pattern typically associated with downdrafts.
Weather data indicated that there were only light winds from the northeast.
Kirst’s plane was equipped with two GPS devices. One of the devices, a
Garmin 430, was permanently installed on the plane. The Garmin 430 had lost all
its data and was of no value to the investigation. State troopers recovered another
GPS device, a Garmin 196, from the plane and sent it to the NTSB for
examination.
The Garmin 196 recorded rudimentary flight information, including the
plane’s flight path, ground speed, and over-the-ground altitude. The Garmin 196
also provided a moving map with orientation, and it recorded the plane’s position
once every ten seconds. Garmin 196 devices have not been certified by the FAA
for use in navigation. A government witness testified at trial that he would not use
it to make a landing or to avoid terrain. The witness testified that a Garmin 196 is
accurate within 49 feet at a 95 percent confidence level.
8 Bradford Sipperley, an aviation safety inspector employed by the FAA,
testified at trial that data from the Garmin 196 indicated that the plane made no
turns immediately before the crash. Sipperley testified that the data showed a rapid
loss of air speed immediately before the crash, indicating a rapid climb in altitude.
He testified that the Garmin 196 GPS record indicated that the plane “entered”
Atigun Pass at “data point 798.” The GPS record shows that at that data point the
plane was at an elevation of 3,633 feet, 674 feet above the ground. The record
indicates that the plane hit the ground roughly two minutes later, at an elevation of
4,510 feet.
Two FAA safety inspectors visited the site the day after the crash. One of
them, Jason Major, testified that one propeller blade was missing. Based on
physical evidence at the scene, he concluded that the blade had been torn off when
the plane hit the ground. The director of maintenance for Kirst’s plane inspected
the propeller assembly after the crash. He, too, concluded that the blade had come
out “on impact.” An air safety inspector of the propeller’s manufacturer concluded
that the blade broke off when it hit the rocks. The propeller assembly was later
shipped to the manufacturing plant in Ohio for further examination. That
examination confirmed the air safety inspector’s conclusion that ground impact
had caused the damage to the propeller. Testing results from an independent
9 metallurgical lab showed no signs of metal fatigue in the propeller assembly. The
missing blade was never found. The manufacturer’s air safety inspector thought
that the missing blade should be located close to the plane if it had come off upon
impact, but testified at trial that failure to locate the propeller blade was not
unusual due to ricocheting and terrain.
On September 9, 2014, Clint Johnson, Chief of NTSB’s Alaska Regional
Office, interviewed Kirst in his hospital room after clearing the interview with his
doctors and nurses. Pilots are not required to participate in NTSB interviews, but
most participate. Kirst agreed to the interview but did not allow an FAA
representative to be present. Kirst’s attorney was present at the interview. He had
advised Kirst not to agree to the interview due to his injuries. Johnson testified at
trial that Kirst was coherent and articulate during the interview.
According to notes taken by an NTSB employee in the hospital room during
the interview, Kirst stated that the flight from Bettles to Atigun Pass took about 20
minutes. Kirst stated that just before the accident “[h]e was climbing through 5500
[to] 5700 feet with a target altitude of 6000 feet around Chandalar Shelf,”
immediately south of Atigun Pass. Kirst stated that Spencer “slumped into the
yoke and blocked the throttle and landing gear controls as they encountered rising
terrain and a downdraft.” Kirst stated that he yelled at the unresponsive Spencer
10 and tried to push him away from the controls. According to Kirst, he was pinned
by Spencer and unable to push Spencer off the controls. Kirst told Johnson that
Spencer’s weight on the controls put the plane in a descent that resulted in the
crash. Kirst characterized McCann and Nason, who were sitting in the back, as
unresponsive during the time Spencer was blocking the controls.
Johnson testified at trial that he was surprised to hear Kirst say that Spencer
had blocked the controls, and that he saw Kirst’s lawyer raise his eyebrows when
Kirst made that statement. Prior to the interview, NTSB officials had believed that
the accident was due to pilot error; that the plane was climbing in a rising terrain;
and that the plane could not clear the pass. An NTSB investigator testified at trial
that he found Kirst’s statement that Spencer had blocked the controls confusing
because it was inconsistent with Kirst’s previous statement that a downdraft had
caused the crash.
On November 7, 2014, Kirst submitted a Form 6120 to the NTSB. The form
is an accident report that a pilot must complete after an accident. Kirst indicated in
the report that he had been operating a 135 flight (a flight carrying passengers for
payment). During a 135 flight, a plane is required to maintain a distance of 500
feet from the terrain, both in altitude and in horizontal distance on each side of the
plane. Kirst wrote on the form: “While operating at approximately 5600',
11 encountered abrupt and unexpected aircraft instability. Took steps to correct but
actions were ineffective.” Kirst wrote that a “propeller clamp bolt failure caus[ed]
blade to become unindexed and blade separation in flight.” Kirst wrote in the
section asking for a “Safety Recommendation”: “Check torque on propeller clamp
bolts before further flights on this model propell[e]r, one time fix.”
The NTSB upgraded the limited investigation to a more serious field
accident investigation as a result of the alleged mechanical failure. A field
accident investigation requires more resources and involves representatives from
the propeller, airframe, and engine manufacturers. The NTSB informed the FAA
of the upgraded investigation in late November 2014.
On December 9, 2016, Kirst emailed the NTSB, alleging that his attorney’s
office had mistakenly marked the flight as a 135 flight when it was, instead, a 91
aerial photography flight. Kirst’s lawyer testified at trial that by characterizing the
flight as a 91 flight, Kirst wanted to defend flying low when the passengers took
pictures of the moose. Kirst’s lawyer testified that he disagreed and thought that
Kirst operated a 135 flight.
C. The FAA’s Revocation of Kirst’s Airman Certificate
The FAA started an investigation in October 2014. The FAA revoked
Kirst’s airman certificate on an emergency basis on December 11, 2015,
12 prohibiting him from flying. Kirst was observed taxiing in his plane (presumably
after a flight) after the revocation, prompting the FAA to issue a second emergency
order of revocation.
Kirst appealed the FAA’s revocation of his airman certificate. The NTSB
reviews appeals of the FAA’s revocations of airman certificates. 49 U.S.C. § 1133.
During the appeal, the FAA deposed Kirst in March 2016. During the
deposition, Kirst stated that the plane flew at 5500–5600 feet and continued
climbing before the crash. Kirst stated that as his plane approached Atigun Pass,
he could see through the pass, and that the plane “pitched over” badly, falling at
1000 feet per minute. Kirst stated that Spencer flopped forward, and that he (Kirst)
turned the plane 180 degrees. According to Kirst, Spencer bumped the throttle,
and “everything went to hell again,” while he yelled at the other passengers to hold
onto Spencer.
Kirst testified before an NTSB administrative law judge (“ALJ”) during his
appeal. Kirst testified that he was flying at 5500 feet and aiming to climb to 6000
feet before the crash. According to Kirst, the plane pitched over badly, Spencer
“had gone forward under the controls,” and he yelled for someone to get Spencer
off the controls. Kirst also testified that a proper investigation would have
revealed that the propeller failed and completely disconnected from the plane.
13 Kirst claimed that he made a U-turn when the airplane pitched over, but later
testified that he made a 360-degree turn. Kirst also testified that he lost 1500 feet
of elevation before the crash. The NTSB ALJ upheld the FAA’s revocation of
Kirst’s airman certificate.
The FAA’s enforcement attorney testified at trial that Kirst’s altitude
statements during his appeal were “very important.” He testified that if the
statements had been accurate, the plane would have been more than 500 feet above
the pass, resulting in no violation.
D. Indictment, Trial, and Conviction
In December 2017, the government filed a three-count indictment against
Kirst.
Counts One and Two charged Kirst with obstructing the “due and proper
administration of the law” in a “pending proceeding” before an agency, in violation
of 18 U.S.C. § 1505. Section § 1505 provides in relevant part:
Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any . . . agency of the United States . . . [s]hall be fined under this title, imprisoned not more than 5 years . . . , or both.
18 U.S.C. § 1505 (emphasis added).
14 Count One charged Kirst with obstructing the NTSB investigation between
about August 24, 2014, and March 9, 2017. Count One alleged that Kirst made the
following false and misleading statements during the investigation, including: (1)
that Kirst’s plane was climbing through 5,500 to 5,700 feet with a target altitude of
6,000 feet just prior to the crash; (2) that Spencer slumped into the yoke and
blocked the throttle and landing gear controls just prior to the crash; and (3) that a
propeller blade failed in flight. Count Two charged Kirst with obstructing the
appeal before the NTSB of the revocation of his airman certificate by the FAA
between about April 1, 2015, and September 2, 2016. Count Two alleged that
Kirst made false and misleading statements during the appeal, including: (1) that
Kirst’s plane was climbing through 5,500 to 5,700 feet with a target altitude of
6,000 feet just prior to the crash; (2) that the plane dropped approximately 1,500
feet just prior to the crash; and (3) that a propeller blade failed in flight. Count
Three charged Kirst with piloting an aircraft without a valid airman certificate in
violation of 49 U.S.C. § 46306(b)(7).
At trial, the government presented the evidence summarized above. The
defense presented testimony from, inter alia, Kirst, his attorney, his wife, and a
clinical psychologist.
15 Kirst testified that he learned to fly in the 1970s, and that he returned to
aviation in 2002 after 15 years of teaching. He opened a flight instruction business
in 2006, and later added sightseeing tours and aerial mapping to the business.
Kirst testified that he is an experienced pilot and that he has done about 1000 hours
of aerial mapping.
Kirst testified that he was very familiar with the route taken during the
August 24 flight and that he “can almost fly it in [his] sleep.” He testified that he
is familiar with the elevations of the mountains around the crash site. He testified
that he relied on the plane’s built-in altimeter during the flight. He testified that
because of his familiarity with the terrain, he could estimate the altitude by the
distance between the plane and the mountain tops.
Kirst testified that he encountered no problem flying the plane between
leaving Bettles and entering the mountainous area near Atigun Pass, despite some
winds at about 5000 feet. He planned to go up the valley, turn right toward the
Atigun Pass, and go over the pass. He testified that the plane was at an altitude of
about 4500 feet and was climbing up to 5000 feet as he turned into the valley
leading to the pass. On cross examination, Kirst testified that the plane was
climbing through 5500–5700 feet with a target altitude of 6000 feet as it
approached Atigun Pass after Chandalar Shelf. Kirst testified that Spencer
16 slumped forward, blocking the controls. The plane pitched nose down and became
uncontrollable. Kirst pulled the power to idle and yelled for passengers to get
Spencer off the controls, but there was no response. Kirst made a 180-degree turn
to the left. The plane was losing altitude at over 1000 feet per minute. Kirst aimed
to land the plane on a steep hill, but the plane had no power.
Kirst acknowledged that the GPS data relied upon by the government, which
the government stated that it had obtained from his plane’s Garmin 196, never
showed the plane flying at more than 1000 feet above the ground. But Kirst was
unwilling to acknowledge that the government’s data came directly from his
Garmin 196. According to Kirst, “It’s [the government’s witness’s] collection of
some data from me, some data from Google Earth, or wherever.” Kirst testified
that he had not used GPS-derived altitude but had relied on the plane’s altimeter.
According to Kirst, his altimeter had shown that the plane was flying between 4700
and 5200 feet as it started through Atigun Pass. Kirst testified that he did not
remember any of his conversations with the pipeline workers who arrived at the
crash site or with the first responders. Kirst also testified that he did not remember
his September 9 interview with Johnson in the hospital.
Kirst testified that while he was in the hospital, he was taking morphine,
Fentanyl, Methadone, Lyrica, OxyContin, Tylenol, and a blood thinner. He
17 continued to take some of these medications after being released from the hospital.
Kirst testified that he signed the NTSB’s Form 6120 in November 2014 while
under the influence of his medications, and that he could not read any of the
checkmarks or boxes on the form. He testified that during the NTSB appeal in
2016, he received copies of the form, eyewitness reports, and mechanical reports.
Kirst testified that he later reached out to the NTSB to correct mistakes and that the
form had been filled out by people in his attorney’s office.
Kirst testified that the propeller blade came apart and that “it started in the
air” at around 5,600 feet. Kirst testified that he thought that the propeller was
improperly assembled, and that he had sued the manufacturers of the propeller.
Kirst lost the lawsuit at summary judgment and later lost the appeal.
Kirst testified that he resumed flying in July 2015 after receiving medical
clearance. He testified that he flew after the FAA issued the first emergency order
revoking his airman certificate because his attorney advised him that he could.
Kirst’s attorney testified that he likely drafted most of the NTSB Form 6120,
and that “[Kirst] would come into my office, read it, review it, give it his okay, and
sign it.” However, the attorney testified that he had no actual recollection of
Kirst’s coming into the office and signing the form. The attorney testified, further,
18 that he would not have let Kirst sign the document if he had concerns about his
mental state.
Kirst’s wife testified that when she arrived at the hospital on August 30,
shortly after the crash, Kirst was “heavily drugged” and not conversational. She
testified that a few weeks into his hospital stay, Kirst was occasionally friendly and
cheerful, but was sometimes confused about things. Another witness testified that
when he first saw Kirst in the hospital, he was “five percent Forest [Kirst].” When
Kirst was released from the hospital, he was “around 85 percent the person” the
witness had always known.
Dr. David Sperbeck, a psychologist, testified about Kirst’s ability to
remember the crash. Dr. Sperbeck had reviewed Kirst’s records but had never
examined him. He testified that Kirst had been too fragile to undergo a thorough
evaluation while in the hospital. In Dr. Sperbeck’s opinion, Kirst had retrograde
amnesia and did not know what had happened before the crash. According to his
testimony, people with retrograde amnesia can recover their memories
spontaneously over time under ideal circumstances, but Kirst was in extreme pain
and heavily sedated. Post-traumatic amnesia creates gaps in a person’s memory
without complete memory loss. Particularly impaired patients may engage in
unintentional misrepresentation of what happened. Patients could suffer from
19 confirmation bias, and “attend[] to” facts that reinforce their beliefs—a process
different from lying. A person suffering from amnesia can appear normal to
others.
Dr. Sperbeck testified that as a result of his retrograde amnesia, Kirst was
probably speculating, deducing, or trying to recreate what happened before the
crash based on his background and his history. The medications likely interfered
with Kirst’s memory, and Kirst could not give reliable statements for probably
about six months, because recovery from mild traumatic brain injury takes one to
eighteen months. Dr. Sperbeck acknowledged that it would be “suspicious” if an
amnesia patient recalled only facts that excused his conduct, especially if his
baseline is simply that he does not remember anything.
After the government rested, Kirst moved under Federal Rule of Criminal
Procedure 29 for a judgment of acquittal. The district court denied the motion
without prejudice. Kirst filed a renewed Rule 29 motion before closing arguments,
which the district court also denied.
The jury returned a special verdict finding Kirst guilty of obstructing
proceedings before an agency in violation of 18 U.S.C. § 1505 (Counts One and
Two). It found, as to Count One, that Kirst violated § 1505 by falsely stating that
his “plane was climbing through 5,500 to 5,700 feet with a target altitude of 6,000
20 feet just prior to the crash.” It found, as to Count Two, that Kirst violated § 1505
by making the false statement just described, and the additional false statement that
“just prior to the crash, [his] plane dropped in altitude approximately 1,500 feet.”
The jury acquitted Kirst of violating 49 U.S.C. § 46306(b)(7) (Count Three). The
district court sentenced Kirst to 12 months and 1 day in prison on Counts One and
Two, to be served concurrently; 3 years of supervised release; and a $5,000 fine.
II. Analysis
A. Count One: “Proceeding” Under § 1505
Kirst appeals his conviction under Count One, arguing that the NTSB’s
accident investigation was not a pending “proceeding” within the meaning of
§ 1505. Kirst contends that proceedings under § 1505 include only proceedings
where an agency has regulatory or adjudicative authority. He points out that the
NTSB lacks such authority during an accident investigation.
At trial, Kirst moved for acquittal under Rule 29. He contended that the
government had not presented sufficient evidence that he had knowingly lied to
obstruct an investigation. However, he did not mention in his motion his current
argument based on § 1505. We therefore review for plain error his argument under
§ 1505. See United States v. Lopez, 4 F.4th 706, 719 (9th Cir. 2021) (“While Rule
29 motions need not specify grounds for acquittal, it is well established that Rule
21 29 motions raising particular grounds fail to preserve appellate review of other
grounds not raised. We review forfeited challenges to the sufficiency of the
evidence for plain error.” (citations omitted)).
“To establish plain error, the defendant must at least demonstrate an error,
that the error was plain, and that the error prejudiced his substantial rights. We
may overturn a conviction for plain error resulting in insufficient evidence only ‘to
prevent a miscarriage of justice or to preserve the integrity and the reputation of the
judicial process.’” Id. (citations omitted) (quoting United States v. Garcia-Guizar,
160 F.3d 511, 516 (9th Cir. 1998)). “An error cannot be plain where there is no
controlling authority on point and where the most closely analogous precedent
leads to conflicting results.” United States v. Wijegoonaratna, 922 F.3d 983, 991
(9th Cir. 2019) (quoting United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir.
2003)).
Even if we were not reviewing for plain error, we would affirm. It is settled
law in this circuit that, as a general matter, an administrative investigation is a
“proceeding” within the meaning of § 1505. In United States v. Vixie, 532 F.2d
1277, 1278 (9th Cir. 1976) (per curiam), the defendant appealed from a conviction
under § 1505 for submitting a false document to the Internal Revenue Service,
which was performing an investigation under the Economic Stabilization Act
22 Amendments of 1971. We held, “An administrative investigation is a ‘proceeding’
within the meaning of 18 U.S.C. [§] 1505.” Id. at 1278 (citing United States v.
Fruchtman, 421 F.2d 1019, 1021 (6th Cir. 1970)).
In United States v. Technic Services., Inc., 314 F.3d 1031, 1037 (9th Cir.
2002), overruled on other grounds by United States v. Contreras, 593 F.3d 1135
(9th Cir. 2010) (en banc), the Environmental Protection Agency investigated
Technic Services, Inc. (“TSI”) for possible violations of the Clean Air Act and
Clean Water Act. Defendant Rushing, an employee of TSI, was convicted under §
1505 of obstructing the investigation. Id. Rushing conceded his “interference with
workers’ air monitoring devices.” Id. at 1044. We upheld the conviction, writing
that “evidence of the EPA proceeding was sufficient to support Rushing’s
conviction for obstructing a federal proceeding by tampering with employees’ air
monitors.” Id.
In United States v. Pacific Gas & Electric Co., 153 F. Supp. 3d 1076, 1078
(N.D. Cal. 2015), defendant Pacific Gas & Electric (“PG&E”) moved to dismiss
Count One of an indictment under § 1505 charging obstruction of an NTSB
investigation, similar to the NTSB investigation at issue in the case now before us.
PG&E contended that an NTSB investigation is not a “proceeding” within the
meaning of § 1505, arguing that § 1505 applies only to agencies with adjudicatory
23 or rulemaking authority. Id. at 1078–79. In a careful opinion, the district court
denied the motion. Id. at 1084. The court held that an NTSB investigation is a
proceeding under § 1505, relying heavily on United States v. Kelley, 36 F.3d 1118
(D.C. Cir. 1994). The court wrote:
[U]nder the reasoning in Kelley, the NTSB is unquestionably an agency “with the power to enhance [its] investigations through the issuance of subpoenas or warrants.” Kelley, 36 F.3d at 1127. Indeed, Congress gave the NTSB broad powers: “The [NTSB] . . . may conduct hearings to carry out this chapter, administer oaths, and require, by subpena [sic] or otherwise, necessary witnesses and evidence.” 49 U.S.C. § 1113(a).
PG&E, 153 F.3d at 1082 (second, third, and fourth alterations in original).
Like the district court in PG&E, we find the reasoning of Kelley persuasive.
In Kelley, Counts Five and Six of the indictment charged the defendant with
obstructing an investigation by the U.S. Agency for International Development
(“AID”), in violation of § 1505. Kelley, 36 F.3d at 1123. The D.C. Circuit held
that a “formal investigation opened by the Office of the Inspector General of AID”
was not a “mere police investigation.” Id. at 1127 (quoting United States v. Batten,
226 F. Supp. 492, 494 (D.D.C. 1964)). Rather, it was “a ‘proceeding’ within the
meaning of § 1505,” because the agency had the power to issue subpoenas and
compel testimony under oath. Id. The court wrote:
The Inspector General’s office of AID is charged with the duty of supervising investigations relating to the proper operation of the agency.
24 In addition, the Inspector General is empowered to issue subpoenas and to compel sworn testimony in conjunction with an investigation of agency activities. Accordingly, the Inspector General’s inquiries, albeit preliminary, constitute a “proceeding” within the meaning of § 1505.
Id. (citation omitted).
So, too, here. In conducting an investigation of an airplane crash, the NTSB
has authority to issue subpoenas and to compel testimony under oath. An NTSB
regulation provides:
(a) General authority of investigators. To carry out the statutory responsibilities of the agency, an NTSB investigator may— ... (2) Administer oaths; (3) Require, by subpoena or otherwise, the production of evidence and witnesses[.] ... (b) Subpoenas. The NTSB may issue a subpoena, enforceable in Federal District Court, to obtain testimony or evidence related to an accident, including but not limited to personal electronic devices.
49 C.F.R. § 831.9 (2017); see 49 U.S.C. § 1113(a)(1).
We therefore conclude that the NTSB investigation of Kirst’s plane crash
was a “proceeding” within the meaning of § 1505. In the course of conducting its
investigation, the NTSB had both subpoena power and the power to compel
testimony under oath. Under Kelley, and under our holding today, that is enough.
Kirst was thus properly charged in Count One with obstructing an NTSB
proceeding.
25 Our dissenting colleague disagrees. He contends that although the NTSB
investigation is a kind of “proceeding,” it is not a proceeding that involves the
“administration of the law” within the meaning of § 1505. Dissent at 12–21. For
the convenience of the reader, we again quote the relevant portion of § 1505:
Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any . . . agency of the United States . . . [s]hall be fined under this title, imprisoned not more than 5 years . . . , or both.
Our colleague construes the phrase “administration of the law” narrowly. In
his view, “administration of the law” requires that an agency conducting a
proceeding not only have authority to conduct the proceeding, but also have
authority to enforce any judgment or decision resulting from the proceeding.
Dissent at 16. He writes, “[W]here the ‘proceeding’ at issue is an investigation,
§ 1505 requires proof that the defendant obstructed the agency’s enforcement of
the law at issue in the investigation.” Dissent at 16 (emphasis in original). Our
colleague argues that because it is the FAA rather than the NTSB that has the
authority to enforce the law by revoking Kirst’s airman certificate, the NTSB’s
investigation does not involve the “administration of the law” within the meaning
of § 1505.
26 To support his argument, our colleague relies on two Supreme Court cases.
Our colleague relies most heavily on United States v. Aguilar, 515 U.S. 593
(1995), in which a federal district court judge was convicted under 18 U.S.C.
§ 1503 for “uttering false statements to an investigating agent.” Id. at 600. The
Court reversed the conviction, holding that the false statements of the defendant
were not covered by § 1503. Id. Section 1503 does not prohibit obstruction of the
“due and proper administration of law,” as does § 1505. See 18 U.S.C. §§ 1503,
1505. Rather, in relevant part, § 1503 prohibits “obstruct[ing] . . . the due
administration of justice.” Id. § 1503 (emphasis added).
The Supreme Court in Aguilar noted that § 1503 was based on a statute that
the Court had interpreted one hundred years earlier, in Pettibone v. United States,
148 U.S. 197 (1893). Aguilar, 515 U.S. at 599. In Pettibone, the Court had
interpreted the predecessor statute to apply only to obstruction of pending court
proceedings. See id. Later court of appeals decisions had read § 1503 similarly
narrowly, as applying only to pending judicial or grand jury proceedings. Id.
Relying on Pettibone and agreeing with the later court of appeals decisions, the
Court construed “administration of justice” in § 1503 to require that a defendant
obstruct, or intend to obstruct, a “judicial proceeding[].” Id. Given the history and
wording of § 1503, the question at issue in that case, and the narrow conclusion
27 reached by the Court, we fail to see how Aguilar supports our colleague’s
interpretation of § 1505. That is, we fail to see how Aguilar supports the
conclusion that § 1505 applies only to a proceeding where the agency conducting
an investigation has enforcement authority against a party to the investigation.
Our colleague also relies on Marinello v. United States, 138 S. Ct. 1101
(2018). The defendant in Marinello was criminally charged under 26 U.S.C.
§ 7212(a) with eight tax-related acts, including “failing to maintain corporate
books and records,” “hiding income,” and “paying employees . . . with cash.” Id.
at 1105 (omission in original). Section 7212(a) is part of the Tax Code. It
prohibits “obstruct[ing] . . . the due administration of this title.” 26 U.S.C. §
7212(a). The jury was instructed that it could convict the defendant based on any
of the listed acts. Marinello, 138 S. Ct. at 1105. The Supreme Court reversed his
conviction on the ground that some of the charged acts did not come within the
prohibition of the statute. Id. at 1110.
The Court recognized that the statutory phrase “due administration” was
susceptible to an extremely broad interpretation, potentially including “every ‘[a]ct
or process of administering.” Id. at 1106 (alteration in original) (quoting
Webster’s New International Dictionary 34 (2d ed. 1954)). But the Court held that,
in context, the phrase had a narrower meaning. Id. The Court wrote:
28 [T]he whole phrase—the due administration of the Tax Code—is best viewed, like the due administration of justice [in Aguilar], as referring to only some of those acts or to some separable parts of an institution or business. . . . Here statutory context confirms that the text refers to specific, targeted acts of administration.
Id. The Court interpreted the phrase as referring to “specific interference with
targeted governmental tax-related proceedings, such as a particular investigation
or audit.” Id. at 1104 (emphasis added).
The Court held in Marinello that the government was required under §
7212(a) to “show that the proceeding was pending at the time the defendant
engaged in the obstructive conduct or, at the least, was then reasonably foreseeable
by the defendant.” Id. at 1110. There is nothing in Marinello that restricts the
phrase “due administration of the Tax Code” to obstruction of enforcement as
distinct from obstruction of an investigation that might, or might not, lead to
enforcement. It is sufficient under Marinello that a defendant be charged with
obstructing “a particular investigation.” Id. at 1104.
Neither Aguilar nor Marinello supports our colleague’s conclusion that in
order for obstruction of an investigation to constitute a violation of § 1505, the
investigation must be by an agency that has enforcement authority against a party
to the investigation.
B. Counts One and Two: Sufficiency of the Evidence
29 Kirst argues that the government presented insufficient evidence that he had
corrupt intent under § 1505 to support a conviction under either Count One or
Count Two. “We review the sufficiency of the evidence de novo.” United States
v. Kaplan, 836 F.3d 1199, 1211 (9th Cir. 2016) (citing United States v. Sullivan,
522 F.3d 967, 974 (9th Cir. 2008) (per curiam)). “There is sufficient evidence to
support a conviction if, ‘viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’” Id. at 1211–12 (quoting Sullivan, 522 F.3d at
974). “[E]vidence is insufficient to support a verdict where mere speculation,
rather than reasonable inference, supports the government’s case, or where there is
a total failure of proof of [a] requisite element.” United States v. Nevils, 598 F.3d
1158, 1167 (9th Cir. 2010) (en banc) (alteration in original) (citation and internal
quotation marks omitted).
The government presented sufficient evidence to prove corrupt intent.
“‘[D]irect proof’ of one’s specific wrongful intent is ‘rarely available,’” and
wrongful intent “may be inferred from circumstantial evidence.” United States v.
Dearing, 504 F.3d 897, 901 (9th Cir. 2007) (quoting United States v. Marabelles,
724 F.2d 1374, 1379 (9th Cir. 1984)). As to Count One, the jury convicted Kirst of
obstructing the NTSB investigation based on his statement that the plane was
30 climbing through 5500–5700 feet prior to the crash. As to Count Two, the jury
convicted Kirst of obstructing the NTSB’s review of the FAA’s revocation of his
airman certificate based on his statements that the plane was climbing through
5500–5700 feet just prior to the crash, and that the plane lost about 1500 feet in
altitude just prior to the crash. At trial, GPS data showed that Kirst was flying
1000 feet below the altitude he claimed, and various eyewitnesses testified that the
plane was flying low. Kirst had a motive to obstruct the NTSB proceedings by
providing false statements during the investigation and appeal because his airman
certificate and his livelihood were at stake. Viewing the evidence in the light most
favorable to the government, a reasonable factfinder could have found corrupt
intent.
C. Materiality
The district court instructed the jury that “[a]n act is ‘material’ if it has a
natural tendency to influence, or is capable of influencing, the agency’s decisions
or activities” (emphasis added). Kirst argues that the phrase “or activities” in the
instruction was improper because it allowed the jury to convict based on Kirst’s
statements that did not affect the NTSB’s decisions or decisionmaking process.
“We review the district court’s ‘precise formulation’ of jury instructions for
abuse of discretion.” United States v. Smith, 831 F.3d 1207, 1214 (9th Cir. 2016)
31 (quoting United States v. Lloyd, 807 F.3d 1128, 1165 (9th Cir. 2015)). “We review
. . . whether the jury instructions misstated an element of the crime . . . de novo.”
Id.
The district court’s instruction accords with Ninth Circuit Model Criminal
Jury Instruction 24.10. We have addressed a similar challenge to a jury instruction
on materiality that contains the phrase, “the agency’s decisions or activities.”
United States v. Peterson, 538 F.3d 1064, 1072–73 (9th Cir. 2008). We rejected
the argument that the word “activities” enabled the jury to find a statement material
even if it was incapable of influencing an agency’s decisions. Id. Further, the
district court made clear that Kirst’s statements must have been capable of
influencing the NTSB investigation or appeal, not just any activity of the agency.
On Count One, the district court instructed, “The Government must . . . prove
beyond a reasonable doubt that the charged conduct . . . was capable of influencing
the investigation conducted by the NTSB” (emphasis added). On Count Two, the
district court instructed, “The Government must prove . . . beyond a reasonable
doubt that the charged conduct . . . was capable of influencing a pending
proceeding before the NTSB, Office of Administrative Law Judges, which was the
appeal of the revocation by the FAA of defendant’s airman’s certificate” (emphasis
added).
32 The district court thus did not err in instructing the jury on the materiality
element.
D. The Fine
Finally, Kirst argues that the district court committed clear error in
determining that he could pay the $5,000 fine.
“A district court’s finding of whether a defendant is able to pay the fine is
reviewed for clear error.” United States v. Orlando, 553 F.3d 1235, 1240 (9th Cir.
2009). “[A] finding is clearly erroneous if it is illogical, implausible, or without
support in the record.” United States v. Burgos-Ortega, 777 F.3d 1047, 1056 (9th
Cir. 2015) (quoting United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010)).
There was no evidence before the district court showing that Kirst was unable to
pay the fine, or was likely to become unable to pay it in the future. The district
court thus did not commit clear error in finding Kirst able to pay the $5,000 fine.
Conclusion
We hold that it was not error, let alone plain error, to convict Kirst on Count
One, on the ground that the NTSB investigation was a “proceeding” within the
meaning of 18 U.S.C. § 1505. We hold, further, that sufficient evidence supported
Kirst’s conviction, and that the district court did not err in instructing the jury on
33 the materiality element. We hold, finally, that the district court did not commit
clear error in assessing the $5,000 fine.
AFFIRMED.
34 FILED NOV 22 2022
United States v. Kirst, 20-30193 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
COLLINS, Circuit Judge, concurring in the judgment in part and dissenting in part:
After a jury trial, Forest Kirst was convicted of two counts of “obstruct[ing]
. . . the due and proper administration of the law” in connection with agency
proceedings arising from the crash of a small airplane Kirst had been piloting. See
18 U.S.C. § 1505. The proceeding at issue in Count 1 was the investigation
undertaken by the National Transportation Safety Board (“NTSB”). However,
because the NTSB lacks any regulatory or enforcement authority over the
accidents it investigates, there is no sense in which the NTSB’s investigation into
Kirst’s accident involved the “administration of the law under which [that]
proceeding [was] being had” within the meaning of § 1505. Id. (emphasis added).
Reviewing for plain error, I therefore would reverse Kirst’s conviction on Count 1
and remand for entry of a judgment of acquittal on that count. But because the
proceeding at issue in Count 2 involved Kirst’s appeal of the Federal Aviation
Administration’s revocation of his airman certificate, that proceeding did involve
the “administration of the law” under which that proceeding was being conducted,
and it therefore fell within the purview of § 1505. As to the remaining issues, I
agree with the majority’s opinion to the extent that it rejects Kirst’s further
challenges to his conviction and sentence on Count 2. I therefore dissent as to
Count 1 and concur in the judgment as to Count 2. I
I begin with a brief summary of the relevant facts. On August 24, 2014,
Kirst crashed a small plane carrying three tourists on an aerial photography tour.
Kirst and the passengers were severely injured, and one passenger died about a
month later. The NTSB initiated an investigation to determine “the facts,
circumstances, and cause or probable cause” of the accident. See 49 U.S.C.
§§ 1131(a)(1)(A), 1132(a)(1)(A). As the Chief of the NTSB’s Alaska Regional
Office explained at trial, the NTSB’s inquiry was “strictly investigative” and its
“ultimate goal” was to “try and keep the accident from happening again.”
On September 9, 2014, the NTSB interviewed Kirst “to find out what the
circumstances were that led up to the accident” and “to give [the NTSB] a better
idea of which direction to go” with the investigation. No members of the Federal
Aviation Administration (“FAA”) were present during the interview. Kirst stated,
in relevant part, that “[h]e was climbing through 5500–5700 feet with a target
altitude of 6000 feet” prior to the crash. Kirst later submitted to the NTSB a
written accident report, in which he stated, “While operating at approximately
5600', encountered abrupt and unexpected aircraft instability. Took steps to correct
but actions were ineffective. Made decision to protect passengers and myself in
light of conditions. Aircraft hit the ground nose up and came to rest on side of
hill.”
2 The FAA visited the crash site shortly after the accident, but the NTSB did
not. In October 2014, the FAA formally notified Kirst about its investigation. The
FAA subsequently concluded that Kirst had violated FAA regulations by “flying
too low for the terrain,” and it revoked Kirst’s airman certificate in 2015. Kirst
appealed the revocation order to an NTSB administrative law judge. See 49 U.S.C.
§ 1133. Kirst stated in a deposition associated with the appeal that prior to the
crash he was flying between 5,500 and 5,600 feet and was heading toward 6,000
feet. Kirst later testified at a hearing associated with the appeal that he “passed
through 5,500. I was aiming for 6,000, probably close to 5,600.” The NTSB
upheld the FAA’s revocation order.
On December 13, 2017, the Government charged Kirst with two counts of
violating 18 U.S.C. § 1505 and one count of piloting an aircraft without a valid
airman certificate. Count 1 alleged that Kirst obstructed “the due and proper
administration of the law under which a pending proceeding was being held before
the NTSB, to wit, the investigation of the August 24, 2014, crash . . . by making
numerous false and misleading statements,” including that his “plane was climbing
through 5,500 to 5,700 feet with a target altitude of 6,000 feet just prior to the
crash.” Count 2 alleged that Kirst obstructed “the appeal of the revocation by the
FAA of [Kirst’s] airman certificate, by making numerous false and misleading
statements,” including that his “plane was climbing through 5,500 to 5,700 feet
3 with a target altitude of 6,000 feet just prior to the crash.”
On November 25, 2019, a jury found Kirst guilty on the first two counts and
not guilty on the third count. Kirst was sentenced to 12 months and 1 day in
prison, 3 years of supervised release, and a $5,000 fine.
II
On appeal, Kirst contends that the evidence on Count 1 at trial was
insufficient to establish a violation of § 1505, because the statements he made in
connection with the NTSB’s factual investigation had nothing to do with the
“administration of the law” under which a “pending proceeding” was being
conducted. See 18 U.S.C. § 1505 (requiring, as an element of the offense, that the
defendant obstructed the due “administration of the law under which any pending
proceeding is being had”).
A
In addressing this contention, we confront a threshold issue as to whether we
may consider this argument and, if so, what is the proper standard of review. I
conclude that we can consider this point, but that our review is only for plain error.
The Government contends that any review of this issue is barred because
Kirst failed to raise a pretrial challenge to the sufficiency of the indictment under
Federal Rule of Criminal Procedure 12(b)(3). According to the Government, it
was apparent on the face of Kirst’s indictment that the Government’s position was
4 that an NTSB investigation involves a “pending proceeding” involving the
“administration of the law,” and if Kirst objected to that view, he should have filed
a Rule 12(b)(3) motion to dismiss the indictment. Because he did not file such a
pretrial motion, the Government argues, he cannot raise this issue at trial or
thereafter unless he first “shows good cause” for his failure to file such a pretrial
motion. See FED. R. CRIM. P. 12(c)(3). The Government’s position is deeply
flawed and reflects a basic misunderstanding of the criminal trial process.
Under the Constitution, a defendant “shall not be held to answer” for a
felony “unless on a presentment or indictment of a Grand Jury.” See U.S. CONST.
amend. V; see also Stirone v. United States, 361 U.S. 212, 215 (1960). Thereafter,
the defendant is constitutionally entitled to a “trial” on that charge “by an impartial
jury.” See U.S. CONST. amend. VI; see also U.S. CONST. art. III, § 2, cl. 3. At that
trial, the Government must shoulder the burden of proving “each element” of the
crime “to the jury beyond a reasonable doubt.” Alleyne v. United States, 570 U.S.
99, 104 (2013) (citing, inter alia, In re Winship, 397 U.S. 358, 364 (1970)).
Within that basic framework, the Federal Rules of Criminal Procedure set forth
certain additional details about how the criminal process is to be conducted,
including challenges to the sufficiency of an indictment, challenges to venue,
requests to suppress evidence, requests for particular jury instructions, and requests
for a directed verdict. See FED. R. CRIM P. 12(b)(3), 29, 30.
5 The particular rule that the Government invokes here is Rule 12(b)(3), which
states that a “defect in the indictment” on grounds of “failure to state an offense”
“must be raised by pretrial motion if the basis for the motion is then reasonably
available and the motion can be determined without a trial on the merits.” See
FED. R. CRIM. P. 12(b)(3)(B)(v) (emphasis added). Rule 12 further provides that
“[i]f a party does not meet the deadline for making a Rule 12(b)(3) motion, the
motion is untimely. But a court may consider the defense, objection, or request if
the party shows good cause.” See FED. R. CRIM. P. 12(c)(3). This rule has no
application here, because Kirst is not asserting, or seeking relief for, any defect in
the indictment. Rather, he is asserting that, at his criminal trial, the Government
failed to present sufficient evidence to establish each element of the § 1505 charge
for which he was being tried.
The Government nonetheless contends that, where a defendant’s claim of
innocence of a charge at trial rests on the premise that the Government
misunderstands the applicable law governing the elements of the charged offense,
the defendant cannot assert such an argument if the Government’s legal
misunderstanding was apparent on the face of the indictment and, without good
cause, the defendant failed to raise the legal issue by pretrial motion. Nothing in
the text of the rules supports this position. Rule 12(b)(3) merely states that, by
failing to file a pretrial motion, a defendant forfeits his right to seek relief based on
6 a “defect in the indictment,” i.e., the defendant cannot later be heard to assert that
the Government has violated his right to a proper indictment that, for example,
reflects a grand jury’s finding of probable cause as to each element. See Hamling
v. United States, 418 U.S. 87, 117 (1974); Giordenello v. United States, 357 U.S.
480, 487 (1958). But the loss of that right to challenge a “defect in the indictment”
does not somehow mean that the defendant is deprived of other rights conferred by
the federal rules or the Constitution, such as the right to a properly instructed jury
or the right to have a jury find all of the elements of the offense beyond a
reasonable doubt. Regardless of whether the indictment was defective and would
have been subject to dismissal, a defendant is still entitled to insist at trial that the
correct law be applied in defining the elements of the charge being tried, see FED.
R. CRIM P. 30(a) (“Any party may request in writing that the court instruct the jury
on the law as specified in the request.”), and that he cannot be convicted unless a
jury finds, beyond a reasonable doubt, each of the elements of the offense being
tried, see Alleyne, 570 U.S. at 104.
Consequently, where the Government’s approach to a prosecution rests on a
fundamental misunderstanding of the applicable law governing the elements of an
offense, the Constitution and the criminal rules unsurprisingly give a defendant
multiple opportunities to contest that misunderstanding, as the Government’s error
successively infects each of the multiple stages of the criminal process. In such a
7 case, Rule 12(b)(3) merely provides that, if a timely pretrial motion is not filed, the
defendant cannot challenge a “defect in the indictment” and insist, for example,
that if the Government wishes to proceed, a new grand jury must make the
necessary findings of probable cause under the correct law. Nothing in the text of
Rule 12 supports the quite different proposition that, if a defendant fails to
challenge such a legal defect when it is apparent on the face of the indictment, he
thereafter cannot contest that underlying legal defect when it reappears in other
forms at trial—meaning, for example, that the jury must be mis-instructed as to the
law and that the defendant must endure a sham trial at which he cannot assert his
actual innocence of the charge under the correct law. Cf. United States v. Zalapa,
509 F.3d 1060, 1064 (9th Cir. 2007) (holding that a defendant who failed to raise a
Rule 12(b) challenge to a multiplicitous indictment “waived any objection to the
form of the indictment” but “did not . . . waive his right to object to his sentences
and convictions as multiplicitous on appeal”); Launius v. United States, 575 F.2d
770, 772 (9th Cir. 1978) (“The argument that one waives his right to object to the
imposition of multiple sentences by his fail(ing) to object to the multiplicious
nature of an indictment is a non sequitur,” because “Rule 12 applies only to
objections with regard to the error in the indictment itself; . . . if sentences are
imposed on each count of that multiplicious indictment the defendant is not forced
to serve the erroneous sentence because of any waiver.” (emphasis added and
8 citation omitted)).
An example will further reveal the absurdity of the Government’s argument.
Suppose that the defendant is indicted for bank robbery in violation of 18 U.S.C.
§ 2113, but the indictment fails to include an allegation that the bank in question
was federally insured or otherwise covered by the statute. See 18 U.S.C. § 2113(f).
If challenged in a pretrial motion, such a facial defect would require dismissal of
the indictment. See United States v. Qazi, 975 F.3d 989, 991 (9th Cir. 2020) (“In
this circuit an indictment missing an essential element that is properly challenged
before trial must be dismissed.”). But if the defendant does not bother to file such
a motion, that would not mean that, at the later trial, he could not then insist under
Rule 30 that the jury be instructed that, in order to convict, it must find beyond a
reasonable doubt that the bank was federally insured. Nor would it mean that, if
the Government fails at trial to introduce evidence that the victim bank was
federally insured, the defendant could not move for a judgment of acquittal under
Rule 29. Under the Government’s view, however, the failure to assert a Rule 12
challenge to the indictment’s facially defective omission of an element of the
offense would mean that the defendant is thereafter barred from “circumvent[ing]
his failure by framing the issue as a sufficiency of the evidence claim.” The trial
would have to proceed, according to the Government, under the legally defective
framing of the offense contained in the indictment, and the defendant could not
9 assert the separate rights granted to him by Rule 29, Rule 30, and the Constitution
to challenge at trial the Government’s failure to prove every element of the offense
beyond a reasonable doubt. Nothing in the rules, precedent, or common sense
supports such an astonishing result. Indeed, the Government fails to cite a single
precedent that adopts its extraordinary position.1
Accordingly, Rule 12(b)(3) poses no categorical bar to challenging the
Government’s construction of § 1505 at trial, either by requesting appropriate jury
instructions under Rule 30 or by seeking a judgment of acquittal under Rule 29.
The fact remains, however, that Kirst at trial did not request any such jury
instructions. And although he did make a Rule 29 motion at trial, it was based
1 Nor have I found any. In United States v. Ghanem, 993 F.3d 1113 (9th Cir. 2021), we held that a failure to raise certain objections to venue before trial precluded the defendant from raising those objections in a subsequent Rule 29 motion challenging the sufficiency of the Government’s evidence of venue at trial. Id. at 1119–21. But venue is “not an essential fact constituting the offense charged,” United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974); it need only be proved “by a preponderance of the evidence,” United States v. Chi Tong Kuok, 671 F.3d 931, 937 (9th Cir. 2012) (citation omitted); and a failure to prove venue results only in dismissal of the indictment and not an “acquittal” that would implicate the double jeopardy clause, see United States v. Kaytso, 868 F.2d 1020, 1021–22 (9th Cir. 1988). Given these special features of venue, and Rule 12’s additional language specifically requiring venue challenges to be raised by pretrial motion if possible, it is unsurprising that in Ghanem we declined to allow a defendant to seek dismissal of the indictment at trial based on a venue theory raised for the first time after the Government had rested. 993 F.3d at 1120–21. But that is a far cry from what the Government asserts here, which is that, by failing to seek pretrial dismissal of the indictment, Kirst is barred from arguing at trial that, under the correct view of the law, the Government failed to prove an essential element of the offense and he is therefore not guilty.
10 only on the ground that “[t]here has been no evidence presented that [Kirst]
knowingly lied to obstruct an investigation, or that he was aware of his revoked
status at the time that he flew the airplane.” Because Kirst failed to argue that the
NTSB investigation did not qualify as a “proceeding” involving the
“administration of the law” within the meaning of 18 U.S.C. § 1505, we review
this issue only for plain error. See United States v. Lopez, 4 F.4th 706, 719 (9th
Cir. 2021) (“[I]t is well established that Rule 29 motions raising particular grounds
fail to preserve appellate review of other grounds not raised. We review forfeited
challenges to the sufficiency of the evidence for plain error.” (citations omitted));
see also FED. R. CRIM. P. 30(d) (“A party who objects to any portion of the
instructions . . . must inform the court of the specific objection and the grounds for
the objection” and “[f]ailure to object in accordance with this rule precludes
appellate review, except as permitted under Rule 52(b)”); FED. R. CRIM. P. 52(b)
(“A plain error that affects substantial rights may be considered even though it was
not brought to the court’s attention.”). In my view, we therefore may review
Kirst’s insufficiency argument on appeal, but only for plain error.
B
“To establish eligibility for plain-error relief, a defendant must satisfy three
threshold requirements. First, there must be an error. Second, the error must be
plain. Third, the error must affect ‘substantial rights,’ which generally means that
11 there must be ‘a reasonable probability that, but for the error, the outcome of the
proceeding would have been different.’” Greer v. United States, 141 S. Ct. 2090,
2096 (2021) (citations omitted). “If those three requirements are met, an appellate
court may grant relief if it concludes that the error had a serious effect on ‘the
fairness, integrity or public reputation of judicial proceedings.’” Id. at 2096–97
(citation omitted). Applying these standards, I would hold that the denial of Kirst’s
Rule 29 motion with respect to the § 1505 charge in Count 1 was plain error.
Addressing the first prong of the plain-error test, I conclude that, as a matter
of law, the NTSB investigation undertaken here did not constitute a “proceeding”
involving the “administration of the law” within the meaning of 18 U.S.C. § 1505.
By its terms, § 1505 imposes criminal punishment on anyone who, inter
alia, “corruptly . . . influences, obstructs, or impedes or endeavors to influence,
obstruct, or impede the due and proper administration of the law under which any
pending proceeding is being had before any department or agency of the United
States.” 18 U.S.C. § 1505 (emphasis added). I agree that an investigation, such as
that conducted by the NTSB here, counts as a “proceeding” in the ordinary sense
of that term. See United States v. Vixie, 532 F.2d 1277, 1278 (9th Cir. 1976) (“An
administrative investigation is a ‘proceeding’ within the meaning of 18 U.S.C.
§ 1505.”); cf. Marinello v. United States, 138 S. Ct. 1101, 1109 (2018) (stating that
12 an “administrative proceeding” includes “an investigation, an audit, or other
targeted administrative action”).
However, § 1505 requires, not merely obstruction of a “proceeding,” but
obstruction of “the due and proper administration of the law” under which that
“proceeding” is being conducted. 18 U.S.C. § 1505 (emphasis added). That
additional phrase cannot be dismissed as surplusage. See Jones v. United States,
529 U.S. 848, 857 (2000) (“Judges should hesitate to treat statutory terms in any
setting as surplusage, and resistance should be heightened when the words describe
an element of a criminal offense.” (simplified)). That is, Congress could have
simplified the wording of § 1505 and made it a crime to obstruct “any pending
proceeding” before an agency, but Congress instead more narrowly required that
the defendant obstruct “the administration of the law” under which the proceeding
is being conducted. The question, then, is whether the NTSB’s investigation
involved the “administration of the law” within the meaning of § 1505. The
answer, in my view, is no.
Here, the “law” under which the NTSB investigation was conducted is
Chapter 11 of Title 49 of the United States Code. See 49 U.S.C. § 1101 et seq.
Specifically, § 1131 provides that the NTSB shall “investigate . . . and establish the
facts, circumstances, and cause or probable cause” of any “aircraft accident” the
NTSB “has authority to investigate under section 1132 of this title.” Id.
13 § 1131(a)(1)(a). Section 1132, in turn, states that the NTSB “shall investigate . . .
each accident involving civil aircraft.” Id. § 1132(a)(1)(A). The specific tools for
carrying out such an investigation are set forth in § 1113, which authorizes the
NTSB to “conduct hearings to carry out this chapter, administer oaths, and require,
by subpoena or otherwise, necessary witnesses and evidence.” Id. § 1113(a)(1).
The NTSB is also granted ancillary authority to enforce the subpoenas or orders it
issues in connection with such an investigation, including the power to bring a civil
action to enforce the subpoena or order, id. § 1113(a)(4), and to impose a civil
penalty for disobedience, id. §§ 1151(a), 1155(a).
But conspicuously missing from the powers granted to the NTSB in this
regard is any relevant authority for it to take any measures beyond investigation
and reporting. It cannot, for example, decide to impose any liability, penalty, or
sanction on any person it finds at fault for an accident, nor can it issue any
regulations prescribing changes in the conduct of aviation or of pilots. See
Graham v. Teledyne-Con’t Motors, 805 F.2d 1386, 1389 (9th Cir. 1986) (“These
investigations are not primarily for the purpose of determining civil liability;
indeed, the [NTSB] has no authority to adjudicate the rights of private parties.”);
see also 49 C.F.R. § 831.4(c) (“NTSB investigations are fact-finding proceedings
with no adverse parties. The investigative proceedings . . . are not conducted for
the purpose of determining the rights, liabilities, or blame of any person or entity,
14 as they are not adjudicatory proceedings.”). The power to revoke airman
certificates, for example, is instead lodged in the FAA, not the NTSB. See 49
U.S.C. §§ 44703, 44709, 44710. To be sure, the NTSB has been granted a
separate authority to hear administrative appeals from such FAA revocations, see
id. § 1133(1), and that distinct authority is the subject of the separate violation of
§ 1505 alleged in Count 2 of Kirst’s indictment. But the obstruction alleged in
Count 1 relates only to the NTSB’s purely investigative authority, and under the
statute, that power to conduct formal investigations is unaccompanied by any
substantive regulatory enforcement authority of the NTSB. Indeed, the
Government’s evidence at trial confirms that the “proceeding” that underlies Count
1 was purely investigative and did not involve the exercise of any enforcement
authority. As the Chief of the NTSB’s Alaska Regional Office testified at trial,
“We’re not any kind of a regulatory agency. We’re strictly accident investigators,
and that’s all we do.” Another NTSB official confirmed that the NTSB “can’t
impose any kind of sanctions” and that “enforcement action[s]” are “done
separately by the FAA.”
Under these circumstances, I think it is clear that the NTSB’s investigation
of the accident did not involve the “administration of the law.” Although any
action of an executive agency might be thought of as involving “administration,”
see Marinello, 138 S. Ct. at 1106, the plain language of § 1505 requires that the
15 defendant obstruct, not the administration of an agency or its activities, but the
“administration of the law” under which the proceeding is conducted. See 18
U.S.C. § 1505 (emphasis added). In ordinary usage, the word “administer” means
“to direct or superintend the execution, use, or conduct of,” Administer,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1981 ed.), which denotes a
substantive authority to carry out the law. Here, the NTSB lacks any substantive
authority to execute any laws in the sense that we ordinarily think of as involving
the “administration” of the law. Accordingly, where the “proceeding” at issue is
an investigation, § 1505 requires proof that the defendant obstructed the agency’s
enforcement of the law at issue in the investigation. See United States v.
Browning, 630 F.2d 694, 699 (10th Cir. 1980) (holding that the “ultimate question”
under § 1505 “is not whether the defendant told the truth but whether the defendant
obstructed or interfered with the process of truthfinding in an investigation in the
process of enforcing the law”) (emphasis added). A “strictly investigative”
proceeding by an agency that lacks relevant enforcement authority—i.e., the power
to prescribe relevant substantive rules or to impose liability or sanctions—cannot
satisfy this requirement.
This reading of § 1505 accords with the Supreme Court’s interpretation of
similar language in other obstruction statutes. For example, the Court held in
United States v. Aguilar, 515 U.S. 593 (1995), that “uttering false statements to an
16 investigating agent . . . who might or might not testify before a grand jury” does
not “obstruct, or impede, the due administration of justice” within the meaning of
18 U.S.C. § 1503. Id. at 598, 600 (emphasis modified). Because the
“administration of justice” refers to the actions of the courts or grand juries in
executing the laws against specific persons, a defendants’ acts of obstruction will
violate § 1503 only if undertaken “with an intent to influence judicial or grand jury
proceedings; it is not enough that there be an intent to influence some ancillary
proceeding, such as an investigation independent of the court’s or grand jury’s
authority.” Id. at 599 (emphasis added). Here, the NTSB investigation is, at best,
an “ancillary proceeding” that is “independent” of the FAA’s “authority” to
administer the law by taking enforcement action against Kirst.
Obstruction of the FAA’s “administration of the law” does not count here,
because the laws concerning the FAA’s authority are not “the law under which”
the relevant “pending proceeding is being had before” the NTSB. 18 U.S.C. § 1505
(emphasis added). Nor did the NTSB investigation serve as the basis for the
FAA’s subsequent enforcement action. The NTSB’s investigative report was not
issued until March 2017, nearly two years after the FAA moved to revoke Kirst’s
airman certificate in early 2015. The decision to take action to revoke Kirst’s
certificate was instead based on an “Enforcement Investigative Report” prepared
by the relevant FAA “Flight Standards District Office.” Thus, while the two
17 agencies collaborate and share information, the FAA undertook a substantial
investigation of its own, including visiting the crash site (which the NTSB did not
do) and performing its “own FAA analysis of the [GPS] device” that was the key
item of evidence in the FAA’s decision to revoke Kirst’s certificate. Indeed, the
record of the hearing before the ALJ that upheld the revocation confirms that the
FAA’s action was based largely on its own investigation by its own officials, and
no NTSB official testified at that hearing. And at trial, both the NTSB witnesses
and the FAA witnesses underscored that the two agencies had separate roles and
independent decision-making authority. As the head of the NTSB’s Alaska
Regional Office testified, “FAA, NTSB have two different lanes, for the most part.
We have a lane that we stay in, as far as accident investigation, and the FAA stays
in their lane. They are more on the regulatory side. We are strictly investigative.”
The Supreme Court’s decision in Marinello further confirms that the
majority’s reading of § 1505 is wrong. Drawing on Aguilar, the Court in
Marinello specifically rejected the view that every administrative action performed
by the IRS counts as the “due administration of this title”—i.e., the Internal
Revenue Code—within the meaning of 26 U.S.C. § 7212(a). See 138 S. Ct. at
1105–06. The IRS possesses ample regulatory and enforcement powers in
carrying out the Internal Revenue Code, and it is notable that Marinello limited
§ 7212(a) to the sort of “targeted acts of administration” by the IRS that could lead
18 the IRS itself to take enforcement action against those being targeted. Id. at 1106.
By contrast, the NTSB—given its lack of any substantive enforcement or
regulatory authority—was not engaged in “administration of the law” in the same
way that the IRS was in Marinello. Given the similarities in language between
§ 1505 and § 7212, Marinello’s holding is “highly instructive for use as a guide
toward a proper resolution of the issue now before us.” 138 S. Ct. at 1109.
Indeed, the Court in Marinello recognized that its interpretation “of § 7212
potentially overlaps with . . . § 1505.” Id. at 1107.
None of the precedent invoked by the majority supports its position that an
NTSB investigation is a proceeding involving the “administration of the law.”
Contrary to what the majority suggests, see Opin. at 25–26, we have never held
that an agency’s purely factual investigation, unrelated to any enforcement activity
by that agency, qualifies as a “proceeding” involving the “administration of the
law” under § 1505. In Vixie, we upheld a conviction under § 1505 for “submitting
a false document in response to an Internal Revenue Service subpoena” issued
under § 206 of the Economic Stabilization Act Amendments of 1971. See 532
F.2d at 1278. Under § 206, the authority to issue such subpoenas was granted to
the “head of an agency exercising authority under this title.” See Economic
Stabilization Act of 1970, § 206, as amended, Pub. L. No. 92-210, 85 Stat. 743,
747 (1971), 12 U.S.C. 1204 note (1976 ed.) (emphasis added). Because the statute
19 at issue in Vixie thus granted the IRS substantive enforcement authority, the IRS’s
targeted investigative activities involved the “administration of the law” in a way
that the NTSB’s here did not. Likewise, we held in United States v. Technic
Services, Inc., 314 F.3d 1031 (9th Cir. 2002), overruled on other grounds, United
States v. Contreras, 593 F.3d 1135, 1136 (9th Cir. 2010) (en banc), that an
Environmental Protection Agency (“EPA”) “investigation into a possible violation
of the Clean Air Act or Clean Water Act . . . is a kind of proceeding” under § 1505.
Id. at 1044. In reaching this conclusion, we expressly noted that the investigation
“could lead to a civil or criminal proceeding” by the EPA itself. Id. (citing 42
U.S.C. § 7413(b), (c); 33 U.S.C. § 1319(b), (c)). Technic Services thus also
involved the “administration of the law” in a way that the NTSB investigation at
issue here did not.
The majority also relies on the D.C. Circuit’s opinion in United States v.
Kelley, 36 F.3d 1118 (D.C. Cir. 1994), but that decision does not support the
majority’s holding here. Kelley held that, because the Inspector General of the
U.S. Agency for International Development is authorized to “issue subpoenas and
to compel sworn testimony in conjunction with an investigation of agency
activities,” such an investigation has sufficient formality to count as a
“proceeding” for purposes of § 1505. Id. at 1127. In reaching this conclusion,
Kelley rejected the argument that, to qualify as a “proceeding,” the activities in
20 question must themselves be “adjudicatory or rule-making activities.” Id. I agree
with Kelley on these points, as my discussion of Vixie and Technic Services makes
clear. See supra at 19–20. But Kelley did not address the further question that is
presented here, which is whether, for purposes of § 1505, the particular formal
investigation that properly counts as a “proceeding” is one that is being conducted
under “the law” that is being “administ[ered].” See United States v. Corrales-
Vazquez, 931 F.3d 944, 954 (9th Cir. 2019) (“Cases are not precedential for
propositions not considered.” (simplified)). Moreover, Kelley distinguishes its
holding from United States v. Higgins, 511 F. Supp. 453 (W.D. Ky. 1981), which it
cites with a “cf.” and describes as standing for the proposition that “because [the]
FBI was not vested with rule making or adjudicative power relating to [the] subject
of [an] indictment, its investigation was not a proceeding under § 1505.” Kelley,
36 F.3d at 1127. The latter proposition, of course, is directly contrary to the
majority’s holding today.
For the foregoing reasons, I conclude that the NTSB was not engaged in the
“administration of the law” within the meaning of § 1505 when it investigated
Kirst’s accident. Consequently, as a matter of law, Kirst’s conduct as charged in
Count 1 did not violate § 1505.
Turning to the second prong of the plain-error test, I believe that the error
21 here was plain. “[T]he Supreme Court has made clear that whether an error is
‘plain’ . . . is judged ‘at the time of review’ by the appellate court and not at the
‘time of error.’” United States v. Irons, 31 F.4th 702, 713 (9th Cir. 2022) (quoting
Henderson v. United States, 568 U.S. 266, 273 (2013)). Having found an error in
answering the substantive question at step one, I must proceed to “assess, with the
benefit of hindsight, whether [that] analysis reveals the question at issue to have a
‘plain’ answer or whether that analysis confirms that we have instead answered a
close and difficult question.” Id. Under that standard, I conclude that the above
substantive analysis is sufficiently straightforward that the error is “plain.”
Having concluded that the first two prongs of the plain-error test are met, the
remaining requirements are also satisfied because, as a matter of law, Kirst’s
conduct in Count 1 did not violate § 1505. See United States v. Olano, 507 U.S.
725, 736 (1993) (“The court of appeals should no doubt correct a plain forfeited
error that causes the conviction or sentencing of an actually innocent defendant.”).
Importantly, the Government does not contend that Kirst’s failure to have raised
his § 1505 argument sooner somehow prevented it from producing additional
evidence at trial that might have cured the failure of proof. On the contrary, as the
Government notes in the course of arguing that Kirst should have raised this
argument before trial, the deficiency is inherent in the underlying facts and law,
22 and no amount of additional opportunity by the Government could have cured it.
Because all of the requirements for finding plain error have been met, I
would reverse Kirst’s conviction on Count 1.
III
Because Count 2, by contrast, concerned a statement made in connection
with Kirst’s appeal of the FAA’s revocation of his airman certificate, Count 2 was
based on a distinct proceeding that did involve the “administration of the law” and
that therefore fell within the meaning of § 1505. Moreover, to the extent that it
applies to Count 2, I concur in the majority’s analyses in sections II(B), (C), and
(D) of its opinion, which reject Kirst’s remaining arguments. I therefor concur in
the affirmance of the judgment with respect to Count 2.
* * *
Accordingly, I would reverse Kirst’s conviction under Count 1 and remand
with instructions to enter a judgment of acquittal on that count. I respectfully
dissent to the extent that the majority concludes otherwise. I concur in the
judgment to the extent that it affirms the conviction and sentence on Count 2.
Related
Cite This Page — Counsel Stack
USA V. FOREST KIRST, Counsel Stack Legal Research, https://law.counselstack.com/opinion/usa-v-forest-kirst-ca9-2022.