Those of us of a certain age will remember the television ad for margarine that tastes so much like butter that even Mother Nature is fooled. When Mother Nature learns that the product is not her “delicious butter,” she vexedly responds “It’s not nice to fool Mother Nature!” Well, as we’re seeing for the second time in 16 months, our federal criminal justice system is also telling us it’s not nice to fool (or allegedly fool) the NTSB.
Last week the U.S. Attorney’s Office for the District of Alaska announced that a grand jury in Anchorage returned a three-count indictment against the pilot and owner of a Part 135 commercial air tour operator. According to the NTSB final accident report, the August 2014 flight, which was carrying 3 passengers, impacted rising terrain below the entrance to Atigun Pass, which crosses the Brooks Range. The aircraft was substantially damaged and the defendant and the three passengers sustained serious injuries, with one of the passengers passing away 35 days after the accident. In 2015, the FAA revoked the defendant’s airman pilot certificate and last year, an NTSB administrative law judge upheld the FAA’s revocation action.
The first count of the indictment charges the defendant with obstructing the NTSB investigation in violation of 18 U.S.C. § 1505 by making false and misleading statements, including that:
- the accident aircraft was climbing through 5,500 to 5,700 feet with a target altitude of 6,000 feet just prior to the crash. (The NTSB accident report indicates that during the last 10 minutes of flight, the aircraft was in a shallow climb and its calculated height above ground level decreased from 682 feet to 36 feet).
- just prior to the crash, the passenger in the right front seat slumped onto the flight controls and blocked the throttle and landing gear controls. (The NTSB report indicates that none of the 3 passengers recalled this sequence of events and the audio portion of one of the passenger’s video recorders includes a statement from a first responder that the front seat passenger was seat-belted).
- the aircraft’s propellor blade failed in flight. (The NTSB report indicates the post-accident examination determined that the missing propellor blade separated during the accident impact sequence).
The indictment’s second count charges the defendant with violation of 18 U.S.C. § 1505 by making the same false and misleading statements in the context of the NTSB administrative proceeding during his appeal of the FAA’s revocation action. Finally, the third count alleges the defendant piloted an aircraft in December 2015 without a valid airman certificate in violation of 49 U.S.C. § 46306(b)(7) (willfully serv[ing] … as an airman without an airman’s certificate authorizing the individual to serve in that capacity).
These new indictments come on the heels of the recent case where a federal jury found the Pacific Gas and Electric Company (PG&E) guilty of multiple violations of the Natural Gas Pipeline Safety Act and one count of violating 18 U.S.C. § 1505 by attempting to mislead NTSB investigations of the San Bruno, CA, pipeline explosion on September 9, 2010, that killed 8 people, destroyed 38 residences, and damaged 70 others. This successful prosecution of PG&E was the first time the Department of Justice brought an obstruction of justice case for impeding an NTSB investigation.
Clearly, the recent uptick in prosecutions for obstruction of NTSB investigations — a successful one against a major corporation and a pending one against an individual — underscores the importance of cooperating fully with NTSB investigations (or, for that matter, any federal agency investigation). A maximum sentence of 5 years in prison and a $250,000 fine for individuals found guilty of violating 18 U.S.C. § 1505 ($500,000 per count for corporations) is a heavy penalty for such transgressions.