MEMBER ALERT: AOPA will be closed for the Thanksgiving holiday from 2:30 p.m. Eastern Nov. 26 until 8:30 a.m. Eastern Dec. 1.We are thankful for all of our AOPA members. Happy Thanksgiving!
March 1, 2005
By John S. Yodice
AOPA legal counsel John S. Yodice owns and flies a Cessna 310.
Pilots and owners generally know that it would be a violation of the federal aviation regulations to operate an aircraft unless it is properly registered. I doubt, though, that most realize that operating an improperly registered aircraft could be a federal crime if it is done "knowingly and willfully." I doubt most realize that if such a crime is committed the federal government can seize the aircraft. By that I mean forfeited, lost, kaput! Here is such a case, precipitated by suspicion of drug and weapon violations, yet the result rests only on improper registration.
U.S. Customs agents had been keeping an eye on a particular pilot, suspecting he was transporting illegal drugs. On this occasion the Customs agents thought they had good enough information to ask local law enforcement officers to intercept the pilot when he landed in his Cessna at the local airport. The information could not have been that good because no contraband was found in the immediate search of the Cessna or in later searches by Customs. They did find a weapon, and the pilot was arrested for possession of a concealed weapon. He escaped that one, too. He was later found not guilty of this charge in state court. That was not the end.
It was more like the beginning of the real story for us. While at the airport, the pilot gave his consent to the search of both his airplane and a truck. During that process the pilot was unable to produce proper registration papers for the airplane. At one point, he told one of the local officers at the airport that he had registered the airplane in his father's name to conceal its ownership during the pilot's divorce. Actually, the most recent FAA registration certificate for the airplane was in the name of a former owner who had sold the airplane to the pilot. The former owner was a state Forest Service official who had sold the airplane to the pilot some years earlier, and the airplane had been flown by the pilot ever since. No doubt that heightened the suspicion of the authorities since airplanes registered to natural resources agencies are able to engage in low-level flight, below radar coverage, without attracting a law enforcement response. Such agencies are known to conduct low-level flights for research and survey purposes. Customs seized the airplane and took it into custody for further testing.
So they didn't get the pilot on any drug or weapon violations. There was only a seemingly minor aircraft registration problem. What's the big deal? Well, the big deal is that the pilot was indicted on three federal criminal charges. A three-count federal indictment was filed against the pilot in federal court. The first count charged him with owning and knowingly and willfully operating the unregistered aircraft. The second count charged him with knowingly and willfully operating an unregistered aircraft. In case you are wondering, the first count applies to the owner of the aircraft, whether he operates the aircraft himself, attempts to operate it, or allows someone else to operate it. The second count applies to one who operates or attempts to operate the aircraft, whether or not he owns it. The third count sought forfeiture of the airplane. The law allows for forfeiture of an aircraft whose use is related to a violation of knowingly and willfully operating an unregistered aircraft.
In a plea bargain with the government, the pilot was allowed to plead guilty to the first count. The government agreed to dismiss the second count. Because the pilot had no criminal history, the judge sentenced him to one year of unsupervised probation and a special assessment of $100. This, of course, was for his guilty-plea conviction to the first count. On the third count, the judge ordered forfeiture of the airplane.
Taking the airplane seemed excessive to the pilot in light of the nature of the conviction and the sentence that was imposed. So the forfeiture was taken up on appeal to a U.S. Court of Appeals. The issue before the appellate court was whether this forfeiture violated the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution. In this consideration, the value of the airplane becomes relevant. The case identifies the airplane only as a Cessna. It was not identified by model. One clue is that the pilot estimated the value of the Cessna to be $53,000 at the time of sentencing, and $30,000 in the appeal. Ultimately, the court held that, whichever value was most accurate, the forfeiture of the airplane was not grossly disproportionate to the gravity of the pilot's offense. Therefore, the forfeiture was not in violation of the Excessive Fines Clause.
In case you are thinking, as I did, that the forfeiture provision was meant to relate only to aircraft used in drug smuggling, forget it. While the court noted that the introduction of the criminal penalties and the forfeiture provision were motivated by drug enforcement concerns, the court answered this argument by saying, "Congress clearly intended that forfeiture apply for violations not involving drug trafficking, as well," specifically including improper aircraft registration.
For you "hangar-flying lawyers" who like to see the wording of the applicable regulation, FAR 91.203(a)(2) provides that "no person may operate a civil aircraft unless it has within it...an effective U.S. registration certificate issued to its owner or, for operation within the United States, the second duplicate copy (pink) of the Aircraft Registration Application as provided for in Section 47.31(b), or a registration certificate issued under the laws of a foreign country."
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