number seventeen twenty two eighty five united states of america versus sean fitzgerald oral argument not to exceed fifteen minutes per side mr fry for the good morning chief judge batchelder and may please the court my name is of the fry i'm from the gibbons law firm in newark new jersey here on behalf of the defendant appellant shawn fitzgerald i'd like to reserve three minutes for a bottle pl your honour's this case presents a question of first impression in the federal judiciary how to define the word operates within eighteen u s c section three forty two and answering that question this court should define operates as control of movement of a common carrier under the well established rule of lenity and that is for three reasons which i intend to discuss today first that the word operates within the context of the statute is at least ambiguous second that defendant interpretation is correct and also at least equally possible or equally reasonable as the case law requires a point that the government in fact concedes in its brief how is it reasonable that a person would think it was legal to show up drunk and perform a bunch of prepared tory steps to transport passengers on an airplane that i just don't get that that's a fair question your honor but the rule of lenity requires and our criminal system justice requires specific notice as to exactly what conduct is criminal and what specific penalty will attach so your argument is that he must have thought it was ok to show up drunk as a copilot as long as he what didn't hold the yoke when the planes flying argument your honor is that he sort of all he certainly had notice that there was a criminal statute in michigan under which he was originally indicted that was a misdemeanor punishable by up to ninety three days in prison for operating as a member of a ground crew he did not have the more specific notice as to that his conduct was a felony punishable by up to fifteen years in fact the strict liability statute because the meaning of the term operates is ambiguous as to exactly what conduct was prohibited so if he didn't have notice that means you think it's it was reasonable of him to think he could show up drunk preparing to operate this plane i don't think so your honor i think it was reasonable for him to assume that it was it the statute was ambiguous as to whether or not this particular felony statute applied to his conduct and this jobs your honor with a point your question jobs are the point that the government has made which is that his conduct was in essence malam and say it was bad conduct and therefore he should have known in the cases applying the rule of lenity many of which we've cited to this court some decided by this court including united states versus miller which was authored by  griffin the conduct of the defendant was bad conduct it was reprehensible conduct take for example the miller decision and that case the defendant in a fraudulent bank statement wrote down the names of a number of individuals alleging they were present at a meeting and agreed to something which never in fact happened the question in that case was whether that was use of the identities of those individuals for purposes of the aggravated identity fraud statute it was a given he should have known and had fair notice that his conduct was unlawful under the bank fraud statute but the question is did he have the specific notice that it was on lawful under the identity fraud statute and there because that it was ambiguous as to that question the rule of lenity was applied the same is true in a number of decisions by the united states supreme court for example one from one thousand thirty two might boil versus united states that was about whether or not a and ironically an airplane was a vehicle and that does in that particular case the facts show that defendant had knowingly taken a stolen airplane across state lines clearly reprehensible conduct of which he should have had notice it was not lawful however the question was did that violate the particular statute an issue there and because that question was ambiguous the rule of lenity was a plot it's the principle of fair notice which is your honor so i would also note in support of operation excuse me in support of application of the rule of law that the word operates as all parties agree is not defined in the statute itself there is no pertinent legislative history and moreover it's a broad term general application it's precise scope is unknown exactly as in the cases i just mentioned before words like use words like proceed in the united states versus santos words like vehicle and the mc boyle decision in addition your honour's under the united states versus miller in order for a terminus statue to be ambiguous such that the rule of lenity applies it need only be the case that the defendant's definition is equally possible or equally reasonable and that is a point that the government has conceded in this case and i would point your honour's to pages twenty two and twenty three of the government's brief and that portion of the government's brief baystate that fitzgerald's understanding of the legislative purpose is may well be the case and they say of their own understanding of legislative first purpose only that it is quote equally possible well since all parties agree that the legislative purpose must sharpen the definition of operates here the government has conceded the case away they've conceded that the definition of operate should be control of movement and in the same breath they've conceded that the rule of lenity should properly be a plot but even putting to the side the government's concession fitzgerald's definition of operates is in fact correct for the simple reason that the context of this statute provides the proper plain meaning of the term this is a statute that applies to common carriers and common carriers only in this airplane fly without having somebody having done the prepared tori steps that your client did yes so you don't have to call in your flight plan you don't have to program the navigation you don't have to turn on whatever that device was that powers things up under f a a regulations no those are requirements so if they're required to actually get the plane in operation in takeoff and just trying to figure out why they just logically speaking that that's not operating well your honor that's what does a plane actually have to  your honor that is a question that was never in fact put to the jury because of the definition of operates that the district court gave in its jury instruction if the district excuse me if the district court had instructed the jury properly and they had been told to answer the question as to whether fitzgerald's conduct that day was sufficiently proximate to control of the movement then your honor we wouldn't have an argument because that was the central question in the case that's what all of the defense prove went to the defense argued that his his conduct was too remote for movement and in fact the plane was never going to move because everyone knew he was highly intoxicated instead what the district court did in this case was it instructed the jury that it should determine whether or not his conduct was proximate to the exact phrase was actual operational or functional requirements or for flight for the flight correct with the word requirements being the critical noun here the problem with this is some words after that to further sharpens it goes on to say simply not administrative work that's correct the problem with this definition is twofold that's that's a use the word operate because you're injecting the word movement in as a proxy for operates not in the statute it's not in the statute but there's nothing in the statute either way all parties agree that operates is not defined why do you think movement the important a couple of reasons first and foremost the context of the statute it controls excuse me it regulates only common carriers what common carriers have in common clearly is that they transport passengers so movement is at the center of what congress was trying to regulate but we also cite to a number of statutes federal statutes state statutes federal regulations which are of two types first there are those that regulate the aviation industry for purposes of safety then there are those that are more traditional drunk driving statutes and federal regulations critically both types use the word operates with regard to vehicles and there's a number of cases with regard to both that we've cited and in all of those instances they understand operates to be about movement for example in one of the cases the colman decision under the federal regulation about drunk driving the national parks they use the phrase the engaging the mode of function this further supports our understanding our point is your honour's that movement is at least given the government's concession equally possible as what congress intended to prescribe and as a result the rule rule unsaid when the engine start or when passengers are boarded and that's not even without them that would be very well i think it's a jury question first and foremost your honor whether starting the engine is sufficiently proximate to movement and the proxy ok so we don't actually need to move under your definition we need to get proximate to movement that's correct why isn't all these preparatory steps that proximate to movement as well that they might have been your honor but that was not the question that was put to the jury because the jury instruction with focus on flight rather than movement well it seems like flights even the movement  i mean is it isn't that kind of a higher standard than your honor if the phrase in the jury instruction actual operational or functional requirements had been deleted i would agree with you but i don't think flight is the critical word here i think actually the word requirements is because the question is whether his conduct was proximate to operational or functional requirements for flight and in the context of the trial as a whole the government's prove the government's expert is closing argument this sink perfectly with the notion that if he did any of the preparatory steps listed on the the aircraft instruction manual well in that instance he would have been guilty and so the jury instruction effectively directed a verdict against him because it was an uncontested that he performed some of the functions in the in the preflight instruction manual all of that is not there he did an indeterminate number he was observed to do with the fall he was observed to do he was videotaped doing a portion of the external walk around there was an audio tape recording of him calling for on two occasions calling the air traffic control tower for the clearance information he was observed by the pilot to be touching and maybe setting the what's called the standby all to meter which is a backup redundant feature that measures the altitude he was observed entering some information into the flight management system the government is further argument and we have argued in response that it's not entitled to this inference but the government also argued that he must have performed every step from the external walk around up to the standby alternator which include the following and if i could just see that i'm out of time but i'll just finish your honest question so there's the external walk around that's followed by what's called the power up check to see if when electric current from a generator is put through the machine all the switches are in the right place so nothing moves automatically at that point then there's the systems check and he got a small piece of the way through the systems check which is the standby alternator that's if you allow the government's proof which we say even granting that doesn't get you there for and that's for two reasons the first being all of this was in essence a charade because everyone knew beforehand that he was intoxicated and that he was not going to fly the plane the pilot air traffic control long before he ever stepped foot on the tarmac the decision had been made this flight they set him  i would describe it as a set up i would say they were all biding their time until the police arrived well i mean he's in control i mean he actually could take off i mean it would be a violation of everything he wouldn't have authority but you're saying common carriers like a boss or even a train airplanes are very sophisticated very logical sophisticated and you know i've been told that basically the pilot takes off with the plane lands the plane but in the air the autopilot takes over in the plane basically flies though and it flies itself because it has been programmed before why so i mean looking at the difference between a sophisticated airplane and a bus is the proper tory steps that he took  you know important to the movement anyway you agree with me there's a distinction between a boston airplane because of a yes and i i don't mean to sound like a broken record but i would repeat this point in response your honor whether or not programming the flight management system is sufficiently proximate to the movement of the aircraft or suggests sufficiently important to the movement of the aircraft that a conviction was appropriate in this case is a fair question but it's not the question that was put to the jury the jury should have been instructed that way instead they were instructed that if they found any actual operational or functional requirements for the flight subtracting out administrative or clerical tasks none of which was defined all of which obscure the issue and which in the context of the trial it whole made it seem as though if he had performed any steps such that they didn't even need to determine whether he had programmed the flight management system then in that case your honor we're talking about a different case and we would have also been arguing i mean his entire case at trial was premised on the fact not only that his conduct was remote but that the idea that he had control of the flight management system was was actually a fabrication everything he did was a nobody because as i mentioned just previously everyone was biding their time until the police arrived arrested him and took him out of the cockpit thank you counsel thank you statutory construction and it is the last tool of statutory construction that is appropriate only where as the supreme court has said there is grievous ambiguity in the statute and all other tools of statutory construction have fail and to appropriate to interpret that dictionary definition in the context of the statute and then it's appropriate for the district court to tailor jury instructions according to the proofs that the parties expect to appear at trial and that is precisely what chief judge younger did in this case started with the dictionary definition that both parties have used in this case that operate means to run or control the functioning of something and then look at the statute what sort of operation is in the statute the word operate comes up in many contexts in bestfoods it came up in the context of the circle statute and in this case it comes up in the context of common carriers which transport passengers and there's of course great risk and danger to those passengers if those common carriers are operated under the influence of alcohol and the district or the parties doing gauging this process below where there are a number of proposals made and there's an extensive record that explains why the district court came to the conclusion that it ultimately did with respect to the appropriate definition of operate but as explained by the district court in short what yagur was doing was trying to separate out what really mattered the tasks that were proximate to the functional requirements from flight for flight as opposed to those tasks which were simply administratively clerical there's a line there but ultimately the determination of whether that line is crossed is a jury question and a question that should be led to the jury consistent with how dreams are instructed in all other sorts of cases so mr fry here says that operate means movement but it's just not so not from the dictionary definition not from the tailoring to the facts of the taste case or the interpretation in the context of the statute in appellant's brief they talk about this essential function test in the reply brief quotes back to the principal brief but there's no source for this central function test in law there is no case law cited by the appellant with respect to that and mr fry says in his reply brief and also said here to the court this morning that the government conceded that his interpretation is equally likely and so i want to clear that up as well the government made no such concession what the government said in its brief was strictly an elaboration upon what everyone agrees on which is there is no legislative guidance or case law or on point authority that can tell this court what it ought to do this really is a question of first impression as to what operate means in section three forty two in so mr price as well the purpose is with respect to movement and so the government said well we don't know what the purposes it could be that the purpose is with respect to movement it could be that the purpose is something else but even if what congress was trying to do in an act in three forty two was to regulate the purpose of or it was to meet the purpose of prohibiting the movement of common carriers they could have done so by properly prescribe in activities that are done in preparation for the common carrier in this case in aircraft to move and i think that's exactly how the court below interpreted the statute how destructive the jury and what motivated the rulings on the motion to dismiss and not the denial of the rule twenty nine motion because of course what mr fitzgerald did when he was in that cockpit for more than an hour the morning of august twenty five twenty sixteen is he was preparing the aircraft to move one of the things he did was he turned on the auxiliary power unit  is a critical step in the process but he's liable really for being in the cockpit for turning when the a p irrespective of whether he actually turned it on and i want to explain that a second because first t page eighty five thirty seven thirty eight of the record is just like a little further engine in buck the line technician page eighty six forty eight six forty nine said it is basically a jet engine and the government's expert joseph page eighty seven zero two two zero zero three said in both cases it's really just a small jet engine and again he said it's essentially a small jet engine so there was a dispute about who term the engine on and with respect to the sufficiency challenge this court of course assumes or views the evidence in the light most favored of the government and therefore has to assume that the jury found that mr fitzgerald turned the a p you on but irrespective of whether he turned it on there is no dispute that he was in the cockpit at the end of the more than hour that he was on the plane when the a p was running well why is the a p you being on such a critical step in the preparation of the plane to fly  because it powers all of the systems on the airplane that before the airplane ever moves before the blocks are removed or before the main engines are turned on what the a p you does is it controls the landing gear it controls the weather radar it controls the flaps and the doors of the airplane another i think there's a hatch at the nose of the plane were some component comes out and all those components are powered by hydraulic  power which there was testimony below from captain ramirez that hydraulic power is extremely forceful it can crush it can crush a human bone so if a technician like even buck is near the plane at the time that those components are in operation because the a p has been turned on and the drunk pilot moves a flap when he's not supposed to and the technicians arm is in the way that could cause serious harm if the weather radar is accidentally turned on it sounds innocuous enough at least to me as a lawyer but if the way the weather radar is turned on the ground it exposes the people immediately surrounding the plane to extreme amounts of electromagnetic radiation if the landing gear is accidentally set up while the plane is on the ground it should be set to down or that switch is accidentally flipped after the a p you has been turned on the plane could collapse under the tarmac obviously posing a serious risk physical harm to anyone surrounding the plane or other people on the plane and for those reasons it is fair to find that what mr fitzgerald actually did that morning was to operate the aircraft now mr fry also made the point that everyone decided that the plane was never going to fly at the point that mr fitzgerald stepped on the tarmac i also think that's not an accurate reflection of how the testimony came out in trial the two copilots mr ramirez and mr fitzgerald arrived at the airport around seven o'clock that morning and mr ramirez captain ramirez had  determined that he had to take action with respect to mr fitzgerald's intoxication but what he did is he called his company at that time and he said mr fitzgerald go wait at the f b o the fixed base operation center the little area where  passengers and pilots can wait before going out on the tarmac and at that time captain ramirez remained in the parking lot and called the the company to figure out what was going to do and there were a series of phone calls over the succeeding minutes and while they were trying to determine what appropriate action to take in when mr ramirez then entered the f b o he found that  mr fitzgerald had already proceeded out to the aircraft contrary to his instructions as the pilot in command at a later point it was determined it is true air traffic control and mr mir is in the company decided that that plane was not going to leave but meanwhile mr fitzgerald was on it doing whatever he was doing for that hour and i think the only reasonable review of the record or at least viewing the record in the light most favorable to the government what this court has to conclude is that mr fitzgerald was conducting those multiple steps contained within the operations manual both in the normal power up check in the systems check that are conducted in parallel that mr ramirez testified to that he both knew as a trained pilot on the challenger six o four and as well as that he knew from supervising mr fitzgerald for the twenty five to thirty times that they had flown together i think if you look at the statutes and regulations cited by  fitzgerald in his brief he wants to look to state law which is not appropriate for the reasons explained in the government's brief he also wants to look at other federal regulations that's not appropriate for reasons explained in the government's brief namely that  congress congressional statute shouldn't be interpreted in court and with regulations promulgated by agencies but even if you look at each of those authorities of the as the government has explained in its brief they don't support his position all those authorities in fact support the position that what mr fitzgerald was doing that morning was operating the aircraft unless the court has any questions the government respectfully request that this court affirmed the judgment of the district  or which ones you conceded well judge griffin the record below shows that there is a continuum of steps that need to be executed from really the time that the pilot arrives at the airport until the plane is in the air the district court said that the government's expert at trial testified to that and we know the plane never moved and so there was some point at which that continuum stopped and certainly every i don't think it's fair to read the record to say he did everything there are these two checklist that the government introduced into evidence there is the normal power of checking the systems check and i think we got maybe twenty five or thirty steps other things after those checklists were completed that the pilot would proceed on to we know that they were at least a half an hour away from the scheduled departure time and presumably activities would have taken place during that time but we have direct evidence of what witnesses actually observed him doing and then the government argued and it's fair for the jury to infer this court has to assume the jury found that he performed many of the other steps that would have been conducted at the same time that those steps w number of steps that he made a jury question and it is how many steps you have to do to get to that point i guess is my question well judge griffin of course jury instructions could always be more and more detailed we could always have a court say if you find this that you must convict if you don't find that you must acquit etc etc etc and that's in all sorts of cases think about possession which this court is yes my question is what's the tipping point is it the i think it should still be a jury question in the next case because the jury should be instructed that it has to be something functional related to the flight there are too many fact patterns to imagine what could arise in the next case and so i think that almost always be a jury question  i believe so of course of this court found that as a matter of law what he did was not operation that's a separate question but if the question is well where is the bright line you know what can you do and what can't you do i don't think the court has to decide that here because the task is to look at all of what he did in figure out whether that crossed the line that's what the jury found in this case and appropriately given the importance of the steps that he conducted and for that reason the government  if you hear others a couple of points i'd like to make in rebuttal first you've gotten exactly to the heart of the issue which is where to draw the line in a complex machine like an airplane especially an airplane relative to other common carriers when there are so many functions that happen before it ever moves but if you didn't specifically ask the court to instruct the jury that operation required movement why are we looking at that now your honor the defense did argue in multiple ways throughout the course of the proceedings that movement was essential that argued that first saying passengers aboard are engines running because movement was critical and throughout and it's objections hessen orde how does that implicate the passengers typically board the plane after the engines are running so that would be a later point and it's usually directly before the plane begins to taxi and takeoff though setting the navigation system so that the plane can actually fly someplace reliably is too far removed that was the argument that was made below particularly because heat related movement your honor whether or not it was related to movement first of all was a jury question and that's not the way that the jury was instructed in this case but my problem is i'm trying to figure out at what point us district court to instruct the jury that operation required movement which is what you're saying now that's correct at several different junctures the party defense below objected to the court's instruction on the basis that it was over broad that it encompassed much too much conduct too remote from flight and flight of course in the case of the air common carrier is the movement of that plane it was also well understood by the government and by the district court that the objection to the to the entire theory was that the government's theory of the case and to the jury instruction was that it was too remote from the actual flight or movement of the aircraft in drawing the line and in which particular steps but i'm still confused  i don't think you answered the question i thought you or your premise was movement meant the wheels had to be turning on the plane for lack of a better description but you don't seem to be saying that you're saying if passengers are on board and the engines are running even if the plane isn't quote moving and quote that's movement well that's sufficiently it could be sufficiently proximate to movement that it's within what congress intended to the plane doesn't actually have to be rolling someplace to have the conduct in compassed by operate right now it does not have to be rolling so all we're talking about is really the number of steps and that is  isn't that a prototypical jury question it is a jury question and if the the jury had been properly instructed then i don't think we would have an argument here that he was entitled to a new trial but the jury wasn't instructed that it had to determine whether the steps he performed were sufficiently proximate to movement to warrant a conviction particularly given the fact that all parties conceded that he was never really your whole case is turns on whether the word movement had to be in the statu excuse me had to be in the jury instructions your honor as i said right i would say that the word movement did not have to be there if if it said directly and practically linked to movement you said you wouldn't have a case that's true it's also jury have to have a word in it that the statute does not have i don't think it has to have the word movement i think it had to be a different instruction than what was given so if in place of for example i may have said this before but the instruction says directly approximately linked to actual operational or functional requirements for flight if it had said delete the phrase actual operational or functional requirements then i think the instruction is fine but i think what happens in that phrase first of all which is very opaque and which has no obvious inherent meaning it's somewhat circular in so far as it defines operates in terms of an operational requirement but more to the point it makes the focus on requirements for flight which played directly into the government's case as the government argued in summation the government says now it's not sure exactly where it would draw the line but what the government told the jury in its argument was you have four questions did he perform any step any step in the external walk around any step in the systems check any cept in the normal power of check and that played hand in glove with the instruction that was given which focused on requirements that the jury should have just tried to figure out whether any of those steps and i'm now taking out the language that you asked to have taken out any of those steps were directly and proximately linked to flight that's correct your honor that's what you don't see how that helps the jury to figure this out at all but your time has expired and we appreciate your