Petition for Writ of Certiorari — Guy St. Amour, Petitioner v. United States

Supreme Court briefJun 26, 2018

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NO: ________________

IN THE

SUPREME COURT OF THE UNITED STATES

GUY ST. AMOUR,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

MICHAEL CARUSO

Federal Public Defender

Tracy Dreispul

Assistant Federal Public Defender

Counsel of Record for Petitioner

150 West Flagler Street, Suite 1500

Miami, Florida 33130-1555

Telephone (305) 536-6900

Tracy_Dreispul@fd.org

June 27, 2018

QUESTIONS PRESENTED FOR REVIEW

Title 49, United States Code, Section 46306(b)(9), makes it a felony offense to

knowingly “operat[e] an aircraft with a fuel tank or fuel system that has been

installed or modified,” in a manner that does not comply with Federal Aviation

Administration (FAA) regulations. Petitioner Guy St. Amour, a licensed pilot, was

convicted of violating § 46306(b)(9), after taxiing an aircraft with a modified fuel

tank to a fueling station, in anticipation of take-off the following day. The FAA has

never interpreted “operat[ing] an aircraft” to encompass conduct which is not

temporally connected to immediate flight. Nor has any defendant previously been

criminally prosecuted for violating the regulation at issue.

The Eleventh Circuit discounted the absence of any judicial or administrative

precedent and held that the regulatory and statutory language was broad enough to

encompass “any” use of an aircraft for the purpose of flight. In doing so, the court

refused to apply the rule of lenity, finding that the operative language did “not

create the grievous ambiguity necessary to trigger the rule.” United States v. St.

Amour, 886 F.3d 1009, 1016 n.11 (11th Cir. 2018). The questions presented are:

1. Did the Eleventh Circuit’s novel interpretation of an FAA regulation in a

criminal statute, to encompass conduct never before penalized by the FAA itself,

deprive Mr. St. Amour of fair notice as to the conduct the law prohibited?

2. Whether this Court should grant certiorari to reconcile conflicting

standards governing the threshold at which the rule of lenity applies to the

construction of criminal statutes.

INTERESTED PARTIES

There are no parties to the proceeding other than those named in the caption

of the case.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .................................................................. i

INTERESTED PARTIES .............................................................................................. ii

TABLE OF CONTENTS .............................................................................................. iii

TABLE OF AUTHORITIES ......................................................................................... vi

PETITION ...................................................................................................................... 1

OPINION BELOW......................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

CONSTITUTIONAL PROVISION, STATUTES, AND REGULATIONS

INVOLVED. .......................................................................................................... 2

STATEMENT OF THE CASE AND THE FACTS ....................................................... 3

REASONS FOR GRANTING THE WRIT .................................................................... 8

The Eleventh Circuit’s novel interpretation of an FAA regulation in a

criminal statute, to encompass conduct never before penalized by the

FAA itself, deprived Mr. St. Amour of fair notice as to the conduct the

law prohibited. .................................................................................................... 8

This case exemplifies the dangers of over criminalization ..................... 8

To “operate” an aircraft, within the meaning of the FAA

regulations, means to fly. ......................................................................... 8

Neither

the

FAA,

nor

any

other

agency

charged

with

administering the regulations, has interpreted conduct committed

a day prior to departure to constitute “operating” an aircraft. ............ 11

iii

The analysis applied by the Eleventh Circuit conflicts with the

approach taken by the Fifth Circuit in United States v. Moss,

872 F.3d 304 (5th Cir. 2017) .................................................................. 13

The Eleventh Circuit’s novel interpretation of regulatory terms

deprived Mr. St. Amour of fair notice that his conduct might

subject him to criminal penalties. ......................................................... 15

II. Certiorari should be granted to resolve the issue of when courts should

apply the rule of lenity to ambiguous statutory terms. .................................. 16

The Court has applied varying standards for invoking the rule of

lenity. ...................................................................................................... 16

The standard for invoking the rule may be determinative .................. 18

CONCLUSION............................................................................................................. 20

APPENDIX

United States v. St. Amour, 886 F.3d 1009 (11th Cir. 2018) ......................... A-1

Judgment imposing sentence ......................................................................... A-2

TABLE OF AUTHORITIES

Cases

Administrator v. Collins,

2 N.T.S.B 1494, 2004 WL 1795341 (1975) ......................................................... 12, 13

Administrator v. Pauly,

2 N.T.S.B. 1369, 1975 WL 20191 (1975) .................................................................. 12

Bouie v. City of Columbia,

378 U.S. 347 (1964) .................................................................................................. 16

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) .................................................................................................. 15

Cleveland v. United States,

531 U.S. 12 (2000) .................................................................................................... 18

Daily v. Bond,

623 F.2d 624 (9th Cir. 1980) .......................................................................... 5, 10, 12

In the matter of: Liberty Foundation, Inc.,

2017 WL 9289445 (FAA Dec. 26, 2017) ................................................................... 14

In the matter of: Marion C. Blakely v. Steven L. Foster,

2004 WL 1795341 (N.T.S.B June 29, 2004).......................................................... 14

Muscarello v. United States,

524 U.S. 125, 118 S. Ct. 1911, 141 L.Ed.2d 111 (1998). ...................................... 7,18

Rewis v. United States,

401 U.S. 808 (1971) .................................................................................................. 17

Shaw v. United States,

137 S. Ct. 462 (2016) ................................................................................................ 18

Skilling v. United States,

561 U.S. 358 (2010) .................................................................................................. 19

United States v. Bass,

404 U.S. 336 (1971) .................................................................................................. 17

United States v. Enmons,

410 U.S. 396 (1973) .................................................................................................. 17

United States v. Gradwell,

243 U.S. 476 (1917) .................................................................................................. 17

United States v. Lanier,

520 U.S. 259, 117 S.Ct. 1219,137 L.Ed.2d 432 (1997)......................................... 7,15

United States v. Moss,

872 F.3d 304 (5th Cir. 2017) .............................................................................. 13, 15

United States v. St. Amour,

886 F.3d 1009 (11th Cir. 2018) ........................................................................ passim

United States v. Svete,

556 F.3d 1157 (11th Cir. 2009) .................................................................................. 7

Yates v. United States,

135 S. Ct. 1074 (2015) .................................................................................. 15, 17, 18

Constitutional Provision

U.S. Const. amend V............................................................................................ passim

Rules, Statutes, and Regulations

14 C.F.R. § 1.1 ................................................................................................ 2, 4, 10, 11

18 U.S.C. § 3231 ............................................................................................................. 1

18 U.S.C. § 3742 ............................................................................................................. 1

28 U.S.C. § 1291 ............................................................................................................. 1

28 U.S.C. § 1254(1) ....................................................................................................... 1

49 U.S.C.§ 40101(d)(1) ................................................................................................... 6

vii

49 U.S.C. § 40102(a)(35) .................................................................................... 2, 10, 11

49 U.S.C. § 46306(b)(9) ........................................................................................ passim

S. Ct. R. 13.1 .................................................................................................................. 1

S. Ct. R. Part III ............................................................................................................ 1

Other Authorities

Daniel Ortner, The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus

Linguistics. 25 B.U. Pub. Int. L. J. 101 (2016) ....................................................... 18

Todd Haugh, Overcriminalization’s New Harm Paradigm, 68 Vand. L. Rev. 1191

(Oct. 2015) ................................................................................................................. 15

viii

PETITION FOR WRIT OF CERTIORARI

Petitioner Guy St. Amour respectfully petitions the Supreme Court of the

United States for a writ of certiorari to review the judgment of the United States

Court of Appeals for the Eleventh Circuit, rendered and entered in case number No.

17-13352 in that court on March 29, 2018, United States v. St. Amour, 886 F.3d

1009 (11th Cir. 2018), which affirmed the judgment of the United States District

Court for the Southern District of Florida.

OPINION BELOW

A copy of the decision of the United States Court of Appeals for the Eleventh

Circuit, which affirmed the judgment of the United States District Court for the

Southern District of Florida, is contained in the appendix (A-1).

STATEMENT OF JURISDICTION

The United States District Court for the Southern District of Florida had

original jurisdiction because petitioner was charged with violating federal criminal

laws, pursuant to 18 U.S.C. § 3231. The United States Court of Appeals of the

Eleventh Circuit had jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742, which provide that courts of appeals shall have jurisdiction for all final

decisions of United States district courts. Jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1) and Part III of the Rules of the Supreme Court of the United

States. The petition is timely filed pursuant to Sup. Ct. R. 13.1.

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

U.S. CONST. amend. V

No person shall be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of life or limb,

nor shall be compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public use

without just compensation.

49 U.S.C. § 46306(b)(9)

Except as provided by subsection (c) of this section, a person shall be

fined under title 18, imprisoned for not more than 3 years, or both, if

the person—

...

(9) operates an aircraft with a fuel tank or fuel system that has been

installed or modified knowing that the tank, system, installation, or

modification does not comply with regulations and requirements of the

Administrator of the Federal Aviation Administration.

49 U.S.C. § 40102(a)(35)

(35) “operate aircraft” and “operation of aircraft” mean using aircraft

for the purposes of air navigation, including-(A) the navigation of aircraft; and

(B) causing or authorizing the operation of aircraft with or without the

right of legal control of the aircraft.

14 C.F.R. § 1.1

Operate, with respect to aircraft, means use, cause to use or authorize

to use aircraft, for the purpose (except as provided in § 91.13 of this

chapter) of air navigation including the piloting of aircraft, with or

without the right of legal control (as owner, lessee, or otherwise).

STATEMENT OF THE CASE AND FACTS

Petitioner Guy St. Amour, a licensed pilot, was hired to be a “ferry pilot,” to

fly a Cessna 182 single-engine aircraft from Ft. Lauderdale Executive Airport in

Florida to Asunción, Paraguay. United States v. St. Amour, 886 F.3d 1009, 1010

(11th Cir. 2018). On March 27, 2013, Mr. St. Amour hired two airplane mechanics

to work on the Cessna for its flight. Id. When the work was completed, Mr. St.

Amour “started the aircraft’s engine and taxied to a maintenance facility for

refueling.” Id.

Based on a tip “about a suspicious aircraft,” agents from the Drug

Enforcement Agency (DEA), stopped and spoke with Mr. Amour. Id. The DEA

agents discovered no drugs, and referred the matter to the Department of

Transportation (DOT). On March 25, 2015, Mr. St. Amour was interviewed by

agents from the DOT. Mr. St. Amour provided a sworn affidavit admitting that he

was aware of the need to obtain FAA approval prior to operating an aircraft with

fuel modifications such as those made to the Cessna, but had not sought or secured

such FAA approval. He also stated that he “never flew the airplane to South

America because the D.E.A. showed up to question about the airplane,” and that he

was scheduled to fly the plane to Paraguay the following day. (DE 41:2-3).

On January 6, 2017, nearly four years later after the incident, Mr. St. Amour

was charged in a single-count indictment, alleging that he “knowingly and willfully

operate[d] an aircraft . . . with a fuel tank and fuel system that had been installed

and modified knowing that the tank, system, installation, and modification did not

comply with the requirements of the Administrator of the Federal Aviation

Administration, in violation of 49 U.S.C. § 46306(b)(9).” (DE 1).

Mr. St. Amour moved to dismiss the indictment on the grounds that he did

not “operate” the aircraft within the meaning of the FAA regulations enforced by

the statute. (DE 30). The parties stipulated for purposes of a hearing on the motion

that Mr. St. Amour “taxied an airplane from a facility in Fort Lauderdale Executive

Airport to a fueling facility with a modified, unapproved fuel tank in the back and

other apparatus to the plane.” (DE 63:25). Mr. St. Amour argued that 14 C.F.R. §

1.1 defines “operate, with respect to aircraft,” to mean the use of an aircraft “for the

purpose of air navigation”, and thus defines “operate” to mean “fly or getting ready

to fly”. (DE 30:4-7) (emphasis omitted). Mr. St. Amour also directed the court’s

attention other FAA regulations that

use the term “operate” to refer to flight.

(63:35-36). Mr. St. Amour argued that he did not “operate” the aircraft on March 27,

2013, because he was not preparing for imminent flight.

The district court denied the motion, stating that it found the term “operate”

to be “broader than the more specific concept of flying an aircraft.” (DE 63:52). The

court ruled:

The Court finds that the plain meaning of the term “operate” is clearly

broader than the more specific concept of flying an aircraft.

The Court further finds beyond a reasonable doubt that the

defendant’s conduct of taxiing the subject aircraft to obtain fuel for a

flight scheduled the next day constituted operation of an aircraft for

the purpose of air navigation in violation of 49 United States Code §

46306(b)(9).

While the Court need not attempt to define exactly how close in time

the operation of an aircraft must be in relation to air navigation to

constitute a violation of 49 U.S.C. § 46306(b)(9), the Court finds that in

this case the defendant’s operation of the aircraft was sufficiently

connected to the air navigation scheduled for the following day.

Accordingly, the defendant’s motion to dismiss Count 1 is hereby

denied.

(DE 63:52).

Thereafter, Mr. St. Amour entered a conditional plea of guilt to the sole count

of the indictment, in which he specifically reserved the right to appeal “the District

Court’s denial of the motion to dismiss (DE 30) on the grounds that the term

‘operate’ as used in Title 49, United States Code, Section 46306(b)(9) means ‘fly or

getting ready to fly.’” (DE 40:3).

Mr. St. Amour appealed his conviction to the United States Court of Appeals

for the Eleventh Circuit, arguing that the district court erred by applying a generic

reading of the term “operate,” rather than by construing the term as it is used

within the FAA regulations themselves. Within the field of aviation, Mr. St. Amour

argued, operation of an aircraft is understood to mean “incident to flight and an

integral part of it.” Daily v. Bond, 623 F.2d 624, 626 (9th Cir. 1980).

Mr. St. Amour argued that three independent canons of statutory

construction compelled this result. First, he argued, because 49 U.S.C. § 43609(b)(9)

criminalizes the violation of FAA regulations, the courts are required to apply the

definition of industry terms used by the FAA itself. Second, Mr. St. Amour argued

that the rule of lenity compelled a restrained reading of the statute, particularly

where the government failed to locate even a single precedent interpreting the word

“operate,” with respect to an aircraft, in the manner advocated by the government.

Lastly, Mr. St. Amour argued that the doctrine of constitutional avoidance weighed

in favor of his interpretation, because the district court’s construction of the statute

raised significant Due Process and vagueness concerns.

The Eleventh Circuit decision

The court of appeals affirmed Mr. St. Amour’s conviction in a published

decision issued without oral argument. After reviewing the language of the relevant

statutory and regulatory provisions, the court ruled that 49 U.S.C. § 46306(b)(9)

“broadly embraces any use of an aircraft for the purpose of air navigation, including

flight itself and actions that are preparatory or incident to flight.” St. Amour, 886

F.3d at 1013 (emphasis omitted and emphasis supplied). The court further found

that “[t]he breadth of this definition makes sense” given the policies underlying the

statute, which include “assigning, maintaining, and enhancing safety and security

as the highest priorities in air commerce.” 49 U.S.C.§ 40101(d)(1). “It thus makes

good sense that the term ‘operates an aircraft’ in 49 U.S.C. § 46306(b)(9) reaches

any use of an aircraft for the purpose of flight.” St. Amour, 886 F.3d at 1014

(emphasis omitted and emphasis supplied).

The court disagreed with Mr. St. Amour’s argument “that the term ‘operates

an aircraft’ requires a strict temporal relationship between the use of an aircraft

and flight,” finding that “[t]he definitions do not speak in terms of time; they speak

only of purpose.” Id. at 1015. “Accordingly, when a person uses an aircraft with the

intent for flight, he has operated that aircraft.” Id.

In a footnote, the Court wrote:

St. Amour argues that the term “operates an aircraft” creates

ambiguity sufficient to trigger the rule of lenity or, if not, to raise a

question of unconstitutional vagueness. The rule of lenity is a canon of

statutory construction that “ensures fair warning by so resolving

ambiguity in a criminal statute as to apply it only to conduct clearly

covered.” United States v. Svete, 556 F.3d 1157, 1169 (11th Cir. 2009)

(quotation omitted). It applies when a grievous ambiguity in the

statute allows no more than a guess as to what Congress intended.

Muscarello v. United States, 524 U.S. 125, 138–39, 118 S. Ct. 1911,

1919, 141 L.Ed.2d 111 (1998). Here, the rule of lenity does not require

an acquittal of St. Amour because the term “operates an aircraft” does

not create the grievous ambiguity necessary to trigger the rule. By

defining “operate” as any use of an aircraft for the purpose of air

navigation, including the piloting of aircraft, the statutory and

regulatory definitions puts individuals on notice that the word

“operate” sweeps more broadly than flight or actions imminent to

flight. The rule of lenity has no application to this case.

St. Amour argues that due process forbids interpreting 49 U.S.C. §

46306(b)(9) to proscribe conduct which he could not have foreseen

within its scope. His problem is that the statute is not ambiguous.

United States v. Lanier, 520 U.S. 259, 266, 117 S.Ct. 1219, 1225, 137

L.Ed.2d 432 (1997) (“[T]he vagueness doctrine bars enforcement of a

statute which either forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily guess at its

meaning and differ as to its application.” (quotation omitted) ). Section

46306(b)(9) forbids a person from operating an aircraft with an

unapproved fuel tank, where “operate” is defined to mean using an

aircraft for the purpose of air navigation—including but not limited to

piloting an aircraft. A person of common intelligence would understand

that this language reaches uses of an aircraft done in preparation for

or incident to the flight of an aircraft.

Id. at 1016 n.11.

This petition follows.

REASONS FOR GRANTING THE WRIT

The

Eleventh

Circuit’s

novel

interpretation

FAA

regulation in a criminal statute, to encompass conduct never

before penalized by the FAA itself, deprived Mr. St. Amour of

fair notice as to the conduct the law prohibited.

A. This case exemplifies the dangers of overcriminalization.

The story of Guy St. Amour provides a cautionary tale about the dangers of

overcriminalization in the modern administrative state. His case raises important

questions regarding the interaction between administrative regulations and federal

criminal law, warranting the Court’s review.

In 2013, Guy St. Amour was a licensed airline pilot. He “occasionally worked

as a ‘ferry pilot,’ which mean[t] that he facilitate[d] the sale of aircraft by flying

them to the location of the purchaser.” United States v. St. Amour, 886 F.3d 1009,

1010 (11th Cir. 2018). On March 27, 2013, the DEA received a tip from a

confidential source “that a suspicious aircraft was parked outside” a maintenance

facility at the Fort Lauderdale Executive Airport. Id. at 1011. Agents from the DEA

“apprehended” St. Amour. See id. They thought he was trafficking drugs. They were

wrong. Mr. St. Amour had, however, modified a fuel tank on the aircraft in a

manner inconsistent with FAA regulations. And, while he had not yet flown the

aircraft in that condition, he admitted the intent to do so the following day.

Nearly four years after his encounter with the DEA, Mr. St. Amour was

federally charged with violating 49 U.S.C. § 46306(b)(9), which makes it a crime to

“operat[e] an aircraft with a fuel tank or fuel system that has been installed or

modified, knowing that the tank, system, or modification does not comply with the

regulations and requirements of the Administrator of the Federal Aviation

Administration” The FAA had never before defined “operating an aircraft” broadly

enough to encompass Mr. St. Amour’s conduct. Nor was the government able to

point to a single case where any person had been criminally charged for violating §

46306(b)(9).

This case thus raises an important question of federal law which has not, but

should be, answered by this Court. Specifically, may a criminal court, consistently

with constitutional requirements of notice and due process, impose criminal liability

for the violation of a regulatory statute in a manner never before applied by the

agency charged with enforcing that regulation? Because no agency decision had

ever interpreted the phrase “operates an aircraft” in the manner applied below, Mr.

St. Amour maintains that his prosecution was obtained in violation of due process,

and his conviction must be vacated.

B. To “operate” an aircraft, within the meaning of the FAA regulations,

means to fly.

Within the field of aviation, the word “operate” has a specific and wellunderstood meaning. Title 14, C.F.R. § 1.1 defines “[o]perate, with respect to an

aircraft” as follows:

Operate, with respect to aircraft, means use, cause to use or authorize

to use aircraft, for the purpose (except as provided in § 91.13 of this

chapter) of air navigation including the piloting of aircraft, with or

without the right of legal control (as owner, lessee or otherwise).

14 C.F.R. § 1.1.

Consistently with this definition, 49 U.S.C. § 40102(a)(35) states:

“operate aircraft” and “operation of aircraft” mean using aircraft for

the purposes of air navigation, including

(A) the navigation of aircraft; and

(B) causing or authorizing the operation of aircraft with or without the

right of legal control of the aircraft.

49 U.S.C. § 40102(a)(35).

These provisions codify a consistent and commonly understood definition

with the field of aviation: to operate an aircraft means to use the aircraft “for

purposes of . . . air navigation,” i.e., to fly. Accord, e.g., 14 C.F.R. § 170.3 (“Aircraft

operations

means

the

airborne

movement

aircraft

controlled

and

nonctontrolled terminal areas...”); 14 C.F.R. § 91.7(a) (“no person may operate a civil

aircraft unless it is an airworthy condition.”). See also Daily v. Bond, 623 F.3d 624,

625 (9th Cir. 1980) (petitioner conceded that “operate ‘means incident to flight and

an integral part of it.’”).

C. Neither the FAA, nor any other agency charged with administering

the regulations, has interpreted conduct committed a day prior to

departure to constitute “operating” an aircraft.

Because Mr. St. Amour did not actually fly the plane and was not planning

on flying the plane until the following day, he did not “operate the aircraft” as that

term has consistently been used and interpreted by the FAA. Nonetheless, the

Eleventh Circuit held that the definitions provided in 49 U.S.C. § 40102(a)(3), and

14 C.F.R. § 1.1 are broad enough to embrace “any” use of an aircraft in preparation

for flight. See St. Amour, 886 F.3d at 1014 (“[T]he term ‘operates an aircraft’ in 49

U.S.C. § 46306(b)(9) necessarily encompasses more than the piloting of an aircraft

in flight. It broadly embraces any use of an aircraft for the purpose of air

navigation, including flight itself and actions that are preparatory and incident to

flight.”) (emphasis in original). The court specifically rejected Mr. St. Amour’s

argument that “the term ‘operates an aircraft’ requires a strict temporal

relationship between the use of an aircraft and flight.” St. Amour, 886 F.3d at 1016

(“The definitions do not speak in terms of time; they speak only of purposes.

Accordingly, when a person uses an aircraft with the intent for flight, he has

operated the aircraft.”).

As the district court implicitly noted, however, this “purpose” requirement

necessarily entails a degree of line-drawing. In denying Mr. St. Amour’s motion to

dismiss, the district court stated that it “need not attempt to define exactly how

close in time the operation of an aircraft must be in relation to air navigation to

constitute a violation of 49 U.S.C. § 46306(b)(9).” (DE 63:52). It found only that the

“defendant’s operation of the aircraft was sufficiently connected to the air

navigation scheduled for the following day.” (DE 63:52) (emphasis added). This

raises the obvious question of what would not be “sufficiently connected” to air

navigation to qualify as “operating an aircraft.” Would refurbishing an airplane in

preparation for a flight the following week suffice? What about purchasing a plane,

with the intention of flying in the foreseeable, but not immediately scheduled,

future?

None of the administrative agencies charged with enforcing the regulations

at issue has ever interpreted “operat[ing] an aircraft” as broadly as the Eleventh

Circuit did in this case. Tellingly, every case the Eleventh Circuit relied on in

support of its holding did involve a “strict temporal relationship between the use of

an aircraft and flight.” St. Amour, 886 F.3d at 1015. In other words, the FAA, the

National Transportation Safety Board (NTSB), and the Civil Aeronautics Board

(CAB) have only found operation of an aircraft in circumstances of flight,

preparations for immediate flight, or, as in the case of Administrator v. Collins, 2

N.T.S.B. 1494, 2004 WL 1795341 (1975), conduct occurring prior to the termination

of flight. See Collins, 2 N.T.S.B at 1495 (“upon landing respondent taxied the

aircraft in a careless manner”). See also Administrator v. Pauly, 2 N.T.S.B. 1369,

1370, 1975 WL 20191 (1975) (finding defendant operated the aircraft where “it was

apparent that the aircraft was being started in order to enable respondent to depart

the airport”); Daily v. Bond, 623 F.2d 624 (1980) (attempting to start aircraft for

purposes of flight). See also St. Amour, 886 F.3d at 1009 (citing Administrator v.

Hise, 38 C.A.B. 1237, 1237 (1963), where defendant “taxied to a tie-down area and

stopped the aircraft, but kept the engine running; “these actions were ‘directly and

necessarily connected with the flight.’”). The analysis applied in each of these cases

confirms that “operating” an aircraft requires a strict temporal relationship to

flight. See Collins, 2 N.T.S.B. at 1495 (rejecting respondent’s argument that “taxiing

after termination of a flight does not constitute such ‘operation’”, where respondent

“was performing an act ‘directly and necessarily connected with the flight.’”)

(footnote omitted).

The analysis applied by the Eleventh Circuit conflicts with the

approach taken by the Fifth Circuit in United States v. Moss, 872 F.3d

304 (5th Cir. 2017).

The Eleventh Circuit gave no weight to the fact that the neither the FAA, the

NTSB, nor the CAB, had ever interpreted “operating” an aircraft to encompass

actions taken a day prior to flight. Instead, the court relied on policy justifications

that it believed supported a broad interpretation of statutory terms. St. Amour, 886

F.3d at 1014 (“The breadth of this definition makes sense given the policies

underlying 49 U.S.C. § 46306(b)(9)”).

The Fifth Circuit took the opposite approach in United States v. Moss, 872

F.3d 304, 310 (5th Cir. 2017). There, in interpreting agency regulations, the court

gave significant weight to the absence of agency practice supporting the

government’s position. See id. at 312 (“The consistency of over sixty years’ prior

administrative practice in eschewing direct regulatory control over contractors,

subcontractors and individual employees supports the district court’s conclusion

that these regulations do not apply to nor do they potentially criminalize the

appellees’ conduct.”); Id. at 312 (“The virtually non-existent past enforcement of

OCSLA regulations against contractors confirms that the regulations were never

intended to apply to the appellees.”). See also id. at 315 (“No prior judicial decision

countenanced this action, which is at odds with a half century of agency policy, and

we will not do so now.”).

“Worse, this is no civil enforcement proceeding where ‘only’ money is at

stake.” Id. The government failed to identify even a single past criminal prosecution

for operating an aircraft with a modified fuel tank. Instead, violations of similar

regulations seem always to have been handled administratively. See, e.g., In the

matter of: Liberty Foundation, Inc., 2017 WL 9289445, *3-4 (FAA Dec. 26, 2017)

(Respondent non-profit foundation assessed civil penalty of $32,500, after “major

alteration” to fuel system which resulted in fire); In the matter of: Marion C. Blakely

v. Steven L. Foster, 2004 WL 1795341 (N.T.S.B June 29, 2004) (affirming revocation

of Private Pilot Certificate upon finding of “multiple Regulatory violations which

were done in a deliberate manner, knowingly, in a flight that was reckless”); In the

Matter of Warbelow's Air Ventures, Inc., FAA Order No. 2000-3, 2000 WL 298578 at

*9 (FAA Feb. 3, 2000) (“Complainant failed to explain to the law judge why,

according to the Sanction Guidance Table, the fuel pump violations deserved a

maximum penalty, or what the minimum, moderate, and maximum ranges of a

maximum civil penalty were for an air carrier of Warbelow’s size.”). The Eleventh

Circuit’s expansive definition of “operate,” combined with the absence of prior

criminal enforcement of similar regulations, render this prosecution particularly

unfair. See Moss, 872 F.3d at 314 (“[W]here, as here an agency’s announcement of

its interpretation is preceded by a very lengthy period of conspicuous inaction, the

potential for unfair surprise is acute.”) (citing Christopher v. SmithKline Beecham

Corp., 567 U.S. 142, 158 (2012)).

E. The Eleventh Circuit’s novel interpretation of regulatory terms

deprived Mr. St. Amour of fair notice that his conduct might subject

him to criminal penalties.

Like the fisherman in Yates v. United States, 135 S. Ct. 1074 (2015), Mr. St.

Amour “would have had scant reason to anticipate a felony prosecution” for his

conduct. Id. at 1087 (plurality opinion). Yet, because the government believed he

violated an FAA regulation (in a manner never sanctioned by the FAA itself), Mr.

St. Amour will now “bear the stigma of having a felony conviction.” Yates, 135 S. Ct.

at 1087.

The result is chilling. One scholar estimates that there are “at least 10,000 –

but possibly upwards of 300,000 — federal administrative regulations that can

be enforced criminally.” Todd Haugh, Overcriminalization’s New Harm Paradigm,

68 Vand. L. Rev. 1191, 1198 (Oct. 2015) (emphasis in original). It is also

unconstitutional. See United States v. Lanier, 520 U.S. 259, 266-7 (1997) (“[D]ue

process bars courts from applying a novel construction of a criminal statute to

conduct that neither the statute nor any prior judicial decision has fairly disclosed

to be within its scope”); Bouie v. City of Columbia, 378 U.S. 347, 353 (1964) (holding

that an “an unforeseeable judicial enlargement of a criminal statute, applied

retroactively, operates precisely like an ex post facto law, [which] the Constitution

forbids”).

Because no agency decision had ever interpreted the phrase, “operates an

aircraft” in the manner applied below, Mr. St. Amour had no notice that his conduct

could subject him to a criminal prosecution. He respectfully asks this Court to grant

review to determine whether, consistently with the notice and Due Process

requirements of the Fifth Amendment, a court may impose criminal liability for the

violation of a regulatory statute, in a manner never before applied by the agency in

charge of enforcing that regulation.

II.

Certiorari should be granted to resolve the issue of when

courts should apply the rule of lenity to ambiguous statutory

terms.

A. The Court has applied varying standards for invoking the rule of

lenity.

This Court’s review is additionally needed to clarify the role of lenity in the

interpretation of criminal statute.

In his brief to the Eleventh Circuit, Mr. St.

Amour argued that: “[s]hould the Court have ‘any doubt’ about the meaning of the

statute, however, the rule of lenity should apply.” Brief of the Appellant Guy St.

Amour, No. 17-13352-KK (11th Cir. Oct. 31, 2017) (citing Yates, 135 S. Ct. at 108788 (plurality opinion), for the position that the rule should be invoked in the case of

“any doubt” about the meaning of statutory terms). The Eleventh Circuit dismissed

this argument, finding that the statutory language did “not create the grievous

ambiguity necessary to trigger the rule.”

St. Amour, 886 F.3d at 1016 n.11.

Because the role of lenity may play a determinative factor in many cases – and most

certainly did in this case – Mr. St. Amour respectfully submits that clarifying the

proper application of the rule of lenity provides an additional compelling ground for

granting review.

The Court has, over the years, applied different standards for evaluating

when the rule of lenity should apply. In United States v. Bass, 404 U.S. 336 (1971),

the Court stated without qualification that “ambiguity concerning the ambit of

criminal statutes should be resolved in favor of lenity.” Id. at 348 (quoting Rewis v.

United States, 401 U.S. 808, 812 (1971)). The Court cited with approval language

from United States v. Gradwell, 243 U.S. 476 (1917), that Congressional language

implemental criminal laws should be “plainly and unmistakably” clear. See Bass,

243 U.S. at 349 (quoting Gradwell, 243 U.S. at 486). See also United States v.

Granderson, 511 U.S. 39, 54 (1994) (“In these circumstances – where text, structure,

and history fail to establish that the Government’s position is unambiguously

correct – we apply the rule of lenity and resolve the ambiguity in Granderson’s

favor.”) (citations omitted); United States v. Enmons, 410 U.S. 396, 411 (1973) (“any

ambiguity must be resolved in favor of lenity”) (citations omitted). The most recent

pronouncement of the robust lenity standard appears in Yates, wherein the

plurality wrote: “Finally, if our recourse to traditional tools of statutory construction

leaves any doubt about the meaning of the [term], we would invoke the rule that

‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of

lenity.’” Yates, 135 S. Ct. at 1088 (citing Cleveland v. United States, 531 U.S. 12, 25

(2000) (further citation omitted)).

Other statements, however, have been less generous. In Muscarello v. United

States, the Court held that “[t]he simple existence of some statutory ambiguity . . .

is not sufficient to warrant application of the rule, for most statutes are ambiguous

to some degree.” 524 U.S. 125, 138 (1998) (citation omitted). There, the Court held

that “[t]o invoke the rule, we must conclude that there is a ‘grievous ambiguity or

uncertainty’ in the statute.” Id. at 139 (internal quotation marks and citation

omitted). See also Shaw v. United States, 137 S. Ct. 462, 469 (2016) (“The statute is

clear enough...”).

B. The standard for invoking the rule may be determinative.

The standard applied by a court to determine the existence of ambiguity can

be strongly determinative of whether the rule of lenity applies. See Daniel Ortner,

The Merciful Corpus: The Rule of Lenity, Ambiguity and Corpus Linguistics. 25 B.U.

Pub. Int. L. J. 101, 120 (2016).

[T]he standard of ambiguity the Court chooses to apply is seemingly

determinative. If a judge is looking for a ‘grievous ambiguity’ before

the rule of lenity applies, the judge will conclude the rule of lenity

applies in only 13% of cases.... In contrast, a judge considering whether

a statute is ‘unambiguously correct’ will apply lenity far more

frequently, about 70% of the time.

Id.

In this case, the Eleventh Circuit’s adoption of the “grievous ambiguity”

approach clearly determined the result. That there was some ambiguity – if not

fatal vagueness – in the statutory language was proven by the district court’s

statement that it “need not attempt to define exactly how close in time the

operation of an aircraft must be in relation to air navigation to constitute a violation

of 49 U.S.C. § 46306(b)(9).” (DE 63:52). Such an ad hoc and standardless approach

is at odds with the cardinal rule that criminal statutes must define offenses “with

sufficient definiteness that ordinary people can understand what is prohibited and .

. . in a manner that does not encourage arbitrary and discriminatory enforcement.”

Skilling v. United States, 561 U.S. 358, 402-03 (2010) (quotation omitted). The

statement confirms, moreover, that the district court at least found a degree of

uncertainty sufficient to trigger the rule.

The lower courts’ interpretation of 49 U.S.C. § 46306(b)(9) was not

“unambiguously correct”. Had the Eleventh Circuit used this threshold to invoke

the rule of lenity, Mr. St. Amour would still be a licensed pilot – and not a convicted

felon. He respectfully asks this Court to grant review.

CONCLUSION

Based upon the foregoing petition, the Court should grant a writ of certiorari

to the Court of Appeals for the Eleventh Circuit.

Respectfully submitted,

MICHAEL CARUSO

Federal Public Defender

By: s/Tracy Dreispul

Tracy Dreispul

Assistant Federal Public Defender

Counsel for Petitioner

150 West Flagler Street, Suite 1500

Miami, Florida 33130

Telephone: (305) 536-6900

Miami, Florida

June 27, 2018

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.