By John Alan Cohan, Attorney at Law
As was reported last
month, an 18-month investigation called Operation Safe Pilot
resulted, so far, with grand juries in California indicting 40
pilots for fraud after they falsified medical records to conceal
disabilities ranging from severe heart problems to schizophrenia.
These conditions would have prevented the pilots from obtaining FAA
medical certification. The investigation involved the review of the
records of 40,000 pilots. In addition, some of the pilots failed to
report prior criminal convictions, as required in the FAA medical
certification application. Among those pilots who have been
indicted so far, some are commercial pilots, and some are
physicians.
This investigation is ongoing, nationwide. It is understandable
that officials are pursuing this matter because pilots who provide
false information about their health or criminal history to the FAA
not only violate the law, but could pose threats to aviation safety
as well. Some of the cases involve making incomplete or false
answers to questions relating to medical history. Other cases
involve failing to correctly answer questions asking for
“Record of traffic convictions” and “Record of
other convictions.”
Pilots who think they might be targets of the investigation
should consult an attorney at the earliest opportunity. Once people
are notified that they are being investigated, or once they are
indicted, the situation becomes far more serious and complicated.
Often enough, the best defense is to take charge of the situation,
and possibly work out a plea bargain or a compromise that would be
advantageous under the circumstances.
The statute in
question, 18 U.S.C. § 1001, makes it a felony to
“knowingly and willfully” make any false statement to
any department or agency of the United States. The statute is
usually used to prosecute people who have falsified, concealed, or
covered up “by any trick, scheme or device, a material
fact” on a federal application; or those who have made any
“materially false, fictitious or fraudulent
representation”; or who have used any false writing or
document that contains any materially false, fictitious or
fraudulent statement or entry. Related statutes make it a crime to
make false statements intended to influence a financial
institution, or to make false statements to a grand jury or court
(perjury). These charges carry likely prison sentences and
substantial fines, should the parties be convicted. Needless to
say, the pilots will incur significant legal fees in attempting to
defend themselves or to reach a plea bargain.
The key elements of the crime are: (1) to knowingly and
willfully (2) make a materially false statement or
representation. A principal defense strategy is to argue that
a statement made, while false, was not materially false, or that it
was not knowingly and willfully made (e.g., that it was made as a
honest mistake). Another strategy is to seek to dismiss evidence as
having been obtained in violation of the 4th Amendment’s
protection against unreasonable searches and seizures, or in
violation of laws that protect medical privacy.
A few years ago an airman was indicted under this provision for
making a false statement in the FAA’s medical certificate
form, and was able to get the trial judge to dismiss the indictment
on the grounds that the application form was ambiguous and
misleading. The applicant checked “No” in the boxes
that asked about “Record of traffic convictions” and
“Record of other convictions.” These questions were put
under the heading entitled “Medical History.” In
dismissing the indictment the judge in that case, United States
v. Manapat, 928 F.2d 1097 (11th Cir. 1991), said:
I have determined that it is a
matter of fundamental fairness. And the way their question has been
put on this form, which is basically to determine medical
conditions, is fundamentally unfair; that the way it is put is
vague. It is misleading and confusing. It is ambiguous, and the way
it is configured in the form amounts to a trick question; and I
think it is fundamentally unfair to base a felony prosecution on
any answers that may be given by anybody on this form. And it is so
fundamentally unfair that it amounts to a denial of due
process.
The defense in that case was that the application form was so
confusing that one could inadvertently mark the wrong answer
without realizing the import of such action. The issue of ambiguous
questions has rarely been raised in cases brought under this
statute, but it makes sense to use this as a defense because
fundamental fairness dictates that the questions forming the basis
of a charge need to be precise and articulately phrased.
After the trial judge dismissed the indictment, the Government
appealed, and the 11th Circuit Court of Appeals affirmed the
dismissal, noting that within the “Medical History”
section, the form asked for information about 24
“Conditions.” The first 21 of the conditions were
medical in nature. Questions 22 and 23 asked about convictions. The
24th was again medical in nature. The court said:
We cannot accept the government’s argument that a
reasonable applicant would not be confused by this configuration of
questions. It is conceivable that an applicant might believe that
the form was asking for convictions somehow related to medical
conditions. Or, an applicant could fail to understand the
importance of such questions on a form concerning medical
conditions and simply not give proper thought before answering. Or,
more likely, an applicant in generally good health could routinely
check off the many items on the standardized form without reading
them carefully, resulting in an inaccurate response.
In the cases presently being prosecuted, however, prosecutors
are confident that the “ambiguity” defense will not
wash because most of the pilots made separate statements to the
Social Security Administration concerning medical conditions that
qualified as disabilities. The government has the authority to seek
information necessary to determine the fitness of those who desire
to fly in our nation’s skies. Citizens have the obligation to
fill out such forms truthfully. However, the government may not
provide someone with a confusing and ambiguous form and prosecute
when the answers are inaccurate.
Other defenses that could provide some leverage for plea
bargaining are that the answers given were not material
misrepresentations but were immaterial; that the applicant failed
to sign the application under penalty of perjury; that the
applicant relied on expert advice beforehand (coupled with full
disclosure to the expert), and therefore did not intend to commit
the offense; that the applicant did not have knowledge that a
certain medical condition fell into a certain category on the form;
or that the applicant honestly believed that he was answering the
questions accurately.