Pilot Counsel:

Falsification and the NTSB

May 1, 2009

John S. Yodice has served as legal counsel to AOPA since 1963.

We rarely see a criminal case worth reporting to pilots and aircraft owners that arises in the typical aviation environment in which we operate. But, here is a federal criminal indictment charging, among many other things, the crime of lying to the National Transportation Safety Board in the course of an accident investigation. In fairness, I want to make clear that an indictment is merely a charging document. The government must prove the charges of the indictment beyond a reasonable doubt, and until the government does so, the defendants are presumed innocent. However, this indictment is worth noting because of these unusual NTSB charges. Few of us who are routinely called upon to sign FAA and NTSB forms, and to talk to such aviation officials, would conceive that our statements could be criminally prosecuted, as is happening in this case

The massive scheme alleged in the indictment only incidentally includes these falsification charges. The indictment stems from the 2005 crash of a chartered Bombardier Challenger jet as it took off from Teterboro Airport in New Jersey. The suspected principal cause of the crash was that the aircraft had been overloaded with fuel to the point that its center of gravity exceeded its forward weight limit for takeoff. According to the indictment, the company engages in a “tankering” scheme where company aircraft were over-fueled at certain locations to take advantage of less expensive fuel. According to the indictment, to facilitate this scheme, the aircrafts’ weight-and-balance graphs were falsified to make it appear as if the aircraft were within weight-and-balance limits. This was accomplished by changing the starting point on those graphs to a false basic operating weight and center of gravity.

The indictment names several officials and pilots of the company that operated the charter service. It charges a single count of conspiracy and 21 counts of false statements. The conspiracy count relates to the operation of an on-demand jet charter company without having a Part 135 certificate, and illegally piggybacking on another’s Part 135 certificate. The indictment charges the individuals with the falsification of the “flight logs” related to a number of specific flights. As we have already said, the false statements include misstating the basic operating weight in the calculation of the weight and balance for the flight. Also alleged was the misstatement representing the flights as private when in fact they were really commercial flights.

The charges with which we are concerned in this column have to do with the NTSB investigation of the 2005 crash. Part 830 of the Rules of the National Transportation Safety Board require that the operator of a civil aircraft involved in an accident must give immediate notification of the accident to the NTSB, and must file an accident report within 10 days after the accident (“ Pilot Counsel: Accident Notification and Reporting,” AOPA Pilot February 1990). In general aviation accidents, the pilot in command is considered to be an operator, but even if a different operator (airline, corporate) files the report, each crewmember must attach a factual statement.

In this case, an individual described as a co-founder, president, chief executive officer, and chief line pilot filed the accident report with the NTSB. After an exhaustive government investigation, he was charged with “knowingly and willfully making a materially false, fictitious, and fraudulent statement and representation, namely, a representation in the Accident Report that the Crash Flight was operated under Part 91, when in fact he knew at the time that the Crash Flight was a commercial flight that should have been designated as a Part 135 flight. In violation of Title 18, United States Code, Section 1001 and Section 2.”

Consider also how the investigation of this case played out for a pilot. In the investigation of the accident, the NTSB conducted a telephone interview of a pilot who was described as a first officer and a second in command. In the interview the pilot was asked why he used a basic operating weight of approximately 24,700 pounds on a weight-and-balance graph on a certain flight instead of the basic operating weight of approximately 25,650 pounds preprinted on that graph. The pilot answered that he believed 24,700 pounds was the correct BOW because the company told him this was the correct BOW. In connection with the criminal investigation, the pilot was charged with “knowingly and willfully making a materially false, fictitious, and fraudulent statement and representation, namely, a representation to the NTSB during a telephone interview that he believed 24,700 pounds was the correct BOW, when in fact he knew at the time he flew that flight that the BOW of Jet N370V was approximately 25,650 pounds. In violation of Title 18, United States Code, Section 1001 and Section 2.”

These charges each carry a maximum statutory penalty of five years in prison and a maximum fine of $250,000.

What is important to note is that the statute that is charged applies to many situations where we as pilots and aircraft owners may be called upon to make representations to the FAA and NTSB. Next time you fill out an application for an FAA certificate or rating, or an FAA medical application, notice the language near the line for your signature. And, it is not only the applications and written statements to which the statute applies. As this indictment demonstrates, the statute applies as well to oral and telephonic statements. Unusual criminal charges worth our noting.