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.

FMI: JohnAlanCohan@aol.com